the right to property under the european convention on

The right to propertyunder the EuropeanConventionon Human Rights

A guide to the implementationof the European Convention

on Human Rightsand its protocols

Aida Grgiæ, Zvonimir Mataga,Matija Longar and Ana Vilfan

Human rights handbooks, No. 10COUNCILOF EUROPE

CONSEILDE L’EUROPE

pertyean uman Rights

guide to the implementationonvention on Human Rights

and its protocols

aga, Matija Longar and Ana Vilfan

uman rights handbooks, No. 10

The right to prounder the EuropConvention on H

A of the European C

Aida Grgić, Zvonimir Mat

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Directorate Generalof Human Rightsand Legal Affairs

Council of EuropeF-67075 Strasbourg Cedex

© Council of Europe, 2007Cover illustration © sue2you – Fotolia

1st edition, June 2007Printed in Belgium

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the “Human rights handbooks” series:

o. 1: The right to respect for private and mily life. A guide to the implementation Article 8 of the European Convention on uman Rights (2001)

o. 2: Freedom of expression. A guide to e implementation of Article 10 of the ropean Convention on Human Rights

001)

o. 3: The right to a fair trial. A guide to e implementation of Article 6 of the Euro-an Convention on Human Rights (2001; d edition, 2006)

o. 4: The right to property. A guide to the plementation of Article 1 of Protocol

o. 1 to the European Convention on uman Rights (2001)

No. 5: The right to liberty and security of the person. A guide to the implementation of Article 5 of the European Convention on Human Rights (2002)

No. 6: The prohibition of torture. A guide to the implementation of Article 3 of the European Convention on Human Rights (2003)

No. 7 : Positive obligations under the Euro-pean Convention on Human Rights. A guide to the implementation of the Euro-pean Convention on Human Rights (2007)

No. 8: The right to life. A guide to the implementation of Article 2 of the European Convention on Human Rights (2006)

No. 9: Freedom of thought, conscience and religion. A guide to the implementation of Article 9 of the European Convention on Human Rights (2007)

e opinions expressed in this publication are those of the authors and do not engage the respon-ility of the Council of Europe. They should not be regarded as placing upon the legal instru-

ents mentioned in it any official interpretation capable of binding the governments of member ates, the Council of Europe’s statutory organs or any organ set up by virtue of the European onvention on Human Rights.

3

Introduction . . . . . . . . . . . . . . . . . . . . . . . . .5

The scope of the right . . . . . . . . . . . . . . . . .6

Negative and positive obligations of the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

The content of the right. . . . . . . . . . . . . 10

Deprivation of property (second rule) . .10

Control of the use of property (third rule). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Peaceful enjoyment of possessions (first rule) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Permissible restrictions . . . . . . . . . . . . . 12

Interference . . . . . . . . . . . . . . . . . . . . . . . . .12

Lawfulness . . . . . . . . . . . . . . . . . . . . . . . . . .12

General interest. . . . . . . . . . . . . . . . . . . . . .13

Proportionality . . . . . . . . . . . . . . . . . . . . . 14

The relationship of Article 1 of Protocol No. 1 to other articles of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Article 1 of Protocol No. 1 and Article 3 of the Convention . . . . . . . . . . . . . . . . . . . . . 16






The admissibility criteria. . . . . . . . . . . . 26

Exhaustion of domestic remedies . . . . . . 26

Ratione temporis . . . . . . . . . . . . . . . . . . . . 26

Ratione materiae . . . . . . . . . . . . . . . . . . . . 31

Ratione loci . . . . . . . . . . . . . . . . . . . . . . . . . 31

Specific issues pertaining to central and eastern Europe . . . . . . . . . . . . . . . . . . . . . 32

Restitution claims. . . . . . . . . . . . . . . . . . . . 32

Specially protected tenancy . . . . . . . . . . . 36

Pension rights and other social benefits . 39

Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

List of cases . . . . . . . . . . . . . . . . . . . . . . . . 45

Contents

COUNCIL OF EUROPE HUMAN RIGHTS HANDBOOKS SERIES

4

Article 1 of Protocol No. 1 to the European Convention on Human RightsArticle 1 of Protocol No. 1, which guarantees the right to prop-erty, provides:

Every natural or legal person is entitled to the peacefulenjoyment of his possessions. No one shall be deprived of hispossessions except in the public interest and subject to theconditions provided for by law and by the general principlesof international law.

The preceding provisions shall not, however, in any wayimpair the right of a State to enforce such laws as it deemsnecessary to control the use of property in accordance withthe general interest or to secure the payment of taxes orother contributions or penalties.

DER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

5

f the successive drafts which were the forerun-nt Article 1. Indeed, the right to dispose of one’sutes a traditional and fundamental aspect oferty. Court defined the scope of Article 1 of Pro-pplies only to existing possessions and “doesht to acquire possessions”.l No. 1 protects individuals or legal personsference by the State with their possessions. Itses the right of the State to control the use ofproperty belonging to individuals or legalnditions set out in that provision.itutions have sought to ensure that any inter-y rights pursues the general or public interest.authorities can control the use of property tof taxes or other contributions or penalties.

with the test of proportionality between thed the interests of an individual, interference in such a manner which is not arbitrary andce with the law. As regards its necessity, how-he former European Commission for Humanssion”) have generally accorded States a wideon. Although Article 1 of Protocol No. 1 con-rence for a right to compensation for a taking

NO. 10: THE RIGHT TO PROPERTY UN

IntroductionArticle 1 of Protocol No. 1 guarantees the right to property (seep. 4). Other international human rights instruments, such as theUniversal Declaration of Human Rights, also recognise the rightto property. However, neither the International Covenant on Civiland Political Rights nor the International Covenant on Economic,Social and Cultural Rights which turned the Universal Declara-tion into legally binding commitments made any reference to pro-tecting property.Similarly, when the European Convention on Human Rights (“theConvention”) was being drafted, the states were unable to reach anagreement. The formulation eventually adopted by the first Proto-col provides a rather qualified right to property, allowing the Statea wide power to interfere with that right.In Marckx v. Belgium1 the European Court of Human Rights (“theCourt”) considered for the first time Article 1 of Protocol No. 1 inthe context of illegitimacy legislation in Belgium and explained:

By recognising that everyone has the right to the peaceful enjoy-ment of his possessions, Article 1 is in substance guaranteeingthe right of property. This is the clear impression left by thewords “possessions” and “use of property” (in French: “biens”,“propriété”, “usage des biens”); the “travaux préparatoires”, fortheir part, confirm this unequivocally: the drafters continuallyspoke of “right of property” or “right to property” to describe the

subject-matter oners of the preseproperty constitthe right of prop

In that judgment thetocol No. 1, which anot guarantee the rigArticle 1 of Protocofrom arbitrary internevertheless recognior even deprive of persons under the coThe Convention instference with propertIn particular, public secure the payment oIn order to comply collective interest anshould be conductedwhich is in accordanever, the Court and tRights (“the Commimargin of appreciatitains no explicit refe1. Full references to the cases cited appear on pp. 45 ff.


Introduction6

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ining the effects of legal relations betweeny, the Convention organs check that the lawquality that one person could be arbitrarily

of property in favour of another. In certainer, the State may be under an obligation toegulate the actions of private individuals. ToProtocol No. 1 applies in general where theith property rights, or permits a third party

hension existed before the opening of therotocols to central and eastern Europeanisting Convention standards concerningbeen largely confirmed in rather opulent years, the Commission and the Court hadf legal issues which reflect particular politi-l circumstances in those countries after thest reign. A series of applications involvingctual and legal issues resulting from theates to reverse injustices from the previousw balance between different social groupsed by the Convention institutions.

ight

e a violation of Article 1 of Protocol No. 1leged interference relates to his or her “pos-eaning of that provision.

property or other interference, it is in practice implicitlyquired (Holy Monasteries v. Greece). Only exceptional circum-ances like the unique context of German reunification maystify absence of any compensation paid (Jahn and others v.ermany).

rticle 1 of Protocol No. 1 is the only article of the Conventionhich expressly mentions “legal persons”. Every applicant,hether a natural or legal person, must be able to demonstrate theistence of a right to property at issue in order to qualify as aictim” under the Convention. It follows that companies fallithin the scope of this right. However, company shareholdersve generally no claim based on damage sustained by the com-ny, unless they can show that it was impossible for the company its liquidator to institute domestic proceedings – the so-calledercing of the corporate veil (Agrotexim v. Greece). Very excep-nal reasons will be required for a shareholder to be given stand-

g as a “victim”.

rticle 1 of Protocol No. 1 is not concerned with relationships of arely contractual nature between private individuals. Thus, aurt ruling that requires an individual to surrender property toother individual, for example pursuant to generally applicable

ws such as the law of contract (seizure and sale of property in theurse of execution), tort law or family law (division of inheritedoperty, matrimonial estate), generally fall outside the scope ofrticle 1 of Protocol No 1.

Nevertheless, in determindividuals on propertdid not create such ineand unjustly deprivedcircumstances, howevintervene in order to rconclude, Article 1 of State itself interferes wto do so.

Although some appreConvention and its pcountries, the pre-exproperty issues have case-law. In the recentto address a number ocal, historic and sociaend of the Communirather complicated fapolitical will of the Stregime and seek a nehave thus been examin

The scope of the r

An applicant can allegonly in so far as the alsessions” within the m


7

as much as he would have been able as a legit-

n the case of X v. Germany, the Commissionxpectation of notaries that the existing rates not be reduced by law did not constitute a the meaning of Article 1 of Protocol No. 1.

es not mean that the notion of “possessions”g possessions”. Other assets, including claimsan applicant can argue that he or she has atpectation” (which must be of a nature moree hope) that they will be realised, qualify as

arded as an asset only when it is sufficientlyorceable (“suffisamment établie pour être exigi-e expectation” can come into play in thently established claim. In contrast, a condi-be considered an asset. Therefore, for exam-for fees can only be considered a “possession”as in particular matter come into existence ones rendered by the notary and on the basis ofns for notaries’ fees.

n as to how a claim may constitute an assetossession” is the case of Pressos Companiars v. Belgium. In that case the applicants werehips were involved in collisions in Belgian ter-sidering that the collisions were due to the


The scope of the right

The concept of “possessions” has an autonomous meaning whichis independent from the formal classification in domestic law.

It is often argued that the concept of “possessions” is very broadlyinterpreted in the Court’s case-law because it does not includeonly the right of ownership but also a whole range of pecuniaryrights such as rights arising from shares, patents, arbitrationaward, established entitlement to a pension, entitlement to a rent,and even rights arising from running of a business.

This broad interpretation is mandated by the use of the word“biens” in the French version of the text of Article 1 of ProtocolNo. 1. In French legal terminology the term “biens” relates to allpatrimonial (i.e. pecuniary) rights.

Having said that, it should not come as a surprise that, apart fromownership of immovable or movable property, for example,shares, intellectual property rights, final arbitral award and entitle-ment to a rent arising from a contract also qualify as “possessions”within the meaning of Article 1 of Protocol No. 1.

However, the protection of that article does not apply unless anduntil it is possible to lay a claim to a certain property. As alreadystated, Article 1 of Protocol No. 1 does not guarantee the right toacquire property. It was for this reason that the Court held in theMarckx v. Belgium case that Article 1 of Protocol No. 1 was notapplicable to the illegitimate child’s potential right to inherit incase of death of her mother. In contrast, that article was held to beapplicable in the case when the applicant – also an illegitimatechild – had already inherited a share of the farm but had not been

permitted to inherit imate child.

By the same token, iheld that the mere efor their fees wouldproperty right within

Nevertheless, this dois limited to “existinin respect of which least a “legitimate exconcrete than a mer“possessions”.

A claim may be regestablished to be enfble”). No “legitimatabsence of a sufficietional claim cannot ple, a notary’s claim when such a claim hthe ground of servicthe existing regulatio

A further illustratioand, therefore, a “pNaviera SA and otheship owners whose sritorial waters. Con


Introduction8

neStevinapriapTtioa sitiocoi.e

EnreecAanwadtotein“ase

tridis v. Greece case the applicant operatedhich had been built on the land which was heirs of a certain K.N. and the Greek State.the cinema from the heirs in 1978 but inrdered his eviction on the grounds that heng State property, and assigned the cinema. In 1989 the Athens Court of First Instancection order but the Minister of Finance the court’s judgment. Before the Court thethat the failure of the authorities to returnstituted an infringement of his right to the

his possessions.

, before he was evicted, the applicant hador eleven years under a formally valid leasece by the authorities, as a result of which he, which constituted an asset.

that the applicant, who had had a specific cinema he had rented, had been evicteduthorities and had not set up his businessd that, despite a judicial decision quashing

applicant could not regain possession of theinister of Finance refused to revoke the

e local authorities. In those circumstances,there had been interference with the appli-and eventually held that there had been arotocol No. 1.

gligence of Belgian pilots, for whom under the Belgian law theate was liable, they brought proceedings against the State. How-er, in August 1988 the Belgian legislature enacted a law exempt-g, with retrospective effect, the State from liability. Theplicants complained under Article 1 of Protocol No. 1 that their

ght to property had been violated. The State argued that theplicants had no “possessions” within the meaning of that article.

he Court noted that under Belgian tort law claims for compensa-n came into existence when damage occurred. Therefore, such

claim constituted an asset and therefore amounted to a “posses-on”. Moreover, on the basis of the case-law of the Court of Cassa-n prior to the passing of the new legislation, the applicantsuld argue that the domestic courts would rule in their favour,. accept their claims deriving from accidents in question.

terprise, being understood as a mass of rights, interests, andlations destined to a determined purpose and organised as anonomic unit by an entrepreneur, is also protected underrticle 1 of Protocol No. 1. Enterprise is comprised of interestsd relations, such as clientele, good will, and business secrets, as

ell as potential sources of income, such as organisation andvertising. In fact, the applicability of Article 1 of Protocol No. 1 business practices (i.e. enterprises) extends only to their clien-le and goodwill, as these are entities of a certain value that have many respects the nature of a private right and thus constitutessets” and therefore “possessions” within the meaning of the firstntence of that article.

For example, in the Iaan open-air cinema, win dispute between theThe applicant leased 1988 the authorities owas wrongfully retainito the local authoritieshad quashed the evirefused to comply withapplicant complained the cinema to him conpeaceful enjoyment of

The Court noted thatoperated the cinema fwithout any interferenhad built up a clientele

The Court then notedlicence to operate thefrom it by the local aelsewhere. It also notethe eviction order, thecinema because the Massignment of it to ththe Court found that cant’s property rights breach of Article 1 of P


9

l No. 1 to be applicable. However, this provi-rpreted as giving an individual a right to alar amount, although a substantial reduction affecting the very substance of the right.

er that Article 1 of Protocol No. 1 guaranteesion or other social security benefits wheresuch benefits under the domestic law. This is to a pension or other social security benefitsnteed under the Convention and because, as, Article 1 of Protocol No. 1 does not create aerty.

by virtue of Article 1 of the Convention, the the right protected by Article 1 of Protocolnd merely on the State’s duty not to interfere,ositive measures of protection, particularlyect link between the measures an applicantpect from the authorities and the effectivesessions. There used to be very little case-law

ive obligations under Article 1 of Protocol the Court’s more recent practice, it is clear

ons may arise in a number of circumstances.


The scope of the right

The entitlement to a pension or other welfare (social security)benefits is also capable of falling with the protection of Article 1of Protocol No. 1. The Court has stressed in the Stec and others v.the United Kingdom case that in the modern, democratic State,many individuals were, for all or part of their lives, completelydependent for survival on social security and welfare benefits.Many domestic legal systems recognised that such individualsrequired a degree of certainty and security, and provided for bene-fits to be paid – subject to the fulfilment of the conditions of eligi-bility – as of right. Therefore, where an individual had anassertible right under domestic law to a welfare benefit, theimportance of that right should also be reflected by holding

Article 1 of Protocosion cannot be intepension of a particucould be regarded as

It does not mean eithentitlement to pensthere is no basis for so because the rightis not as such guaraalready noted aboveright to acquire prop

Negative and positive obligations of the StateThe obligation to respect the right to property under Article 1 ofProtocol No. 1 incorporates both negative and positive obliga-tions. The essential object of this provision is to protect a personagainst unjustified interference by the State with the peacefulenjoyment of his or her possessions (negative obligations). Nega-tive obligations have been held to include, for example, expropria-tion or destruction of property as well as planning restrictions,rent controls and temporary seizure of property.In Pressos Compania Naviera SA and others v. Belgium the Statewas held liable for extinguishing the applicant’s pending claims byenacting retroactive legislation.

On the other hand, effective exercise ofNo. 1 does not depebut may require pwhere there is a dirmay legitimately exenjoyment of his poson the State’s positNo. 1. However, fromthat positive obligati


The content of the right10

Intioas

ine the applicant company’s property rightsen violated as a consequence of unfair pro- the reduction of its shareholding in ass of control of the company’s activity and

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cond step is to consider whether there has that possession and, ultimately, the nature. which of the three rules applies). borne in mind that the three rules are notf being unconnected. The second and thirdith particular instances of interference withnjoyment of property and should thereforeght of the general principles enunciated in

operty (second rule)ation of property is the extinction of legalowever, more generally, the Court will not

whether there had been a formal expropri-nership, but will also investigate the realitieshether there has been a de facto expropria-

Öneryıldız v. Turkey the State was found to be under the obliga-n to undertake practical steps to avoid destruction of property

a result of unsafe conditions in a refuse tip.

In Sovtransavto v. Ukrawere found to have beceedings resulting incompany and in the loassets.

he content of the right

rticle 1 of Protocol No. 1 has been held to comprise three dis-ct rules. This analysis was first put forward in the case oforrong and Lönnroth v. Sweden, which is one of the most impor-nt Court judgments in relation to this Article of the Convention.he rules were defined in the following manner:

… The first rule, which is of a general nature, enounces theprinciple of peaceful enjoyment of property; it is set out in thefirst sentence of the first paragraph. The second rule covers dep-rivation of possessions and subjects it to certain conditions; itappears in the second sentence of the same paragraph. Thethird rule recognises that the States are entitled, amongst otherthings, to control the use of property in accordance with thegeneral interest, by enforcing such laws as they deem necessaryfor the purpose; it is contained in the second paragraph.

hen considering whether there has been a violation of Article 1 Protocol No. 1, the Court shall firstly examine whether thereists any property right (a possession) falling within the ambit of

that provision. The sebeen interference withof that interference (i.eIt should, however, bedistinct in the sense orules are concerned wthe right to peaceful ebe construed in the lithe first rule.

Deprivation of prThe essence of deprivrights of the owners. Honly take into accountation or transfer of owof a situation to see wtion.


11

ers v. Austria the applicants owned numerousts. They complained before the Court aboutt granted to tenants pursuant to the newly

he measure at issue was considered to be oneroperty.mentgruppen AB v. Sweden the applicantd that the levying of a newly introducedon it as well as the obligation to pay a supple-arge interfered with its property rights. Thened under the third rule of Article 1 of Proto-

ent of possessions (first rule) said to be of a general nature and includes allrfere with the individual’s property rights, butprivation of property or a measure of controliding which rule a certain situation falls to be Court shall normally first determine whetherird rule are applicable, since they involve par- interference with the peaceful enjoyment ofhe wide interpretation of the other two rules,trol of use of property, the application of thiswide as might have been expected.nroth v. Sweden the existence of expropriationhe reduction of the selling price of the prop-er, the applicants had never ceased to be therty and they could at all times sell it if they


Control of the use of property (third rule)

In Papamichalopoulos v. Greece the applicants’ valuable land hadbeen taken by the State in 1967 during the dictatorship period andgiven to the Navy, which then established a naval base on the site.Since after that time the applicants were unable to make effectiveuse of their property or to sell it, the State was held liable for a defacto expropriation.

In Brumărescu v. Romania the applicant had, on the basis of afirst-instance judgment in his favour, regained possession of ahouse nationalised from his parents in 1950. Subsequently, theSupreme Court quashed the first-instance judgment as a conse-quence of which the applicant was no longer entitled to use thehouse at issue. The Court considered the first-instance judgmentas the applicant’s possession within the meaning of Article 1 ofProtocol No. 1 and examined the case under the second rule ofthat provision.

Control of the use of property (third rule)

A measure falls within this rule if its main aim is for the State tocontrol the use of property, be it in the general interest or “tosecure the payment of taxes or other contributions or penalties”.

In Handyside v. the United Kingdom the authorities seized theapplicant’s book because it contained obscene images. Since thebook had been seized only temporarily, the measure did notinvolve a deprivation of property, but instead fell to be examinedunder the third rule of Article 1 of Protocol No. 1.

In Mellacher and othflats rented to tenanthe reduction of renenacted Rent Act. Tof control of use of pIn Svenska Managacompany complaineprofit-sharing tax upmentary pension chcase fell to be examicol No. 1.

Peaceful enjoymThe first rule is oftensituations which intedo not constitute deof its use. When decexamined under, thethe second or the thticular categories ofpossessions. Given tin particular the conrule has not been as In Sporrong and Lönpermits resulted in terty at issue. Howevowners of the prope


Permissible restrictions12

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he applicant’s pension instalments were paidof high inflation of the currency, as a result the amounts actually received was signifi- case consequently also fell to be examined.

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ed that such measures are not inconsistentns under international law.

right to property must firstly satisfy the. Even though it is expressly stated only in

f the first paragraph of Article 1 of Protocolditions provided for by law”), the principlee of the fundamental principles of a demo-nt in the Convention as a whole and musthichever of the three rules applies.er the Convention also has an autonomousot only a law in a formal sense. It can alsote (e.g. subordinate legislation), Constitu-ty to which the State concerned is a party,

ished to do so. This part of the case was thus examined undere first (general) rule guaranteeing peaceful enjoyment of posses-ons. Stran Greek Rafineries and Stratis Andreadis v. Greece the legis-tion rendering an arbitration award in the applicant’s favour voidd unenforceable fell to be considered under the first rule.

In Solodyuk v. Russia tlate in circumstances of which the value ofcantly decreased. Theunder the general rule

ermissible restrictions

terferences already stated, the right to protection of property is, however,t absolute. It is subject to restrictions clearly prescribed in

rticle 1 of Protocol No. 1. Interference with the right to peacefuljoyment of possessions shall be allowed only if:

it is prescribed by law,it is in the public interest, andit is necessary in a democratic society.

ll three conditions must be fulfilled cumulatively. Should onlye of them not be met, there will have been a violation of the

onvention.

rthermore, by virtue of Article 15 of the Convention, at time ofar or other public emergency the State may take measures dero-ting from its obligation to respect the right to peaceful enjoy-ent of property to the extent strictly required by the exigencies

of the situation, providwith its other obligatio

LawfulnessInterference with therequirement of legalitythe second sentence oNo. 1 (“subject to conof legal certainty as oncratic society is inheretherefore be satisfied wThe notion of law undmeaning. A “law” is ninclude another statution, international treaas well as EC law.


13

d it will be unnecessary for the Court even toch unlawful interference pursued a legitimated been proportionate.s v. Greece the applicant was evicted from anpite the fact that the eviction order in his caseeveral months after the eviction. The Courtuthorities’ refusal of the applicant’s request ton question – which constituted interferenceghts – had been unlawful and that there hadiolation of Article 1 of Protocol No. 1.dere Alberghiera v. Italy the applicant com-opriated with a view to building a road. Thesequently quashed the decision on expropria-lawful. However, once the applicant companye land, its request was dismissed, the courtsat the transfer of property to the authoritiesible. The Court concluded that the denial ofd in the circumstances of the present case hadticle 1 of Protocol No. 1.

wful interference with the individual’s prop-ustified only if it pursues a legitimate aim ininterest. This obligation is expressly stated inon of property (“public interest”) and in rela-se of property (“general interest”). However,h property rights, irrespective of the rule it


General interest

It is not sufficient for the act, on the basis of which a State limitedthe enjoyment of possessions, to be a formal legal source withinthe meaning of the domestic law, but it must furthermore containcertain qualitative characteristics and afford appropriate proce-dural safeguards so as to ensure protection against arbitraryaction.

For example, in the case of James v. the United Kingdom, the Courtreiterated that

… it has consistently held that the terms “law” or “lawful” inthe Convention [do] not merely refer back to the domestic lawbut also [relate] to the quality of the law, requiring it to be com-patible with the rule of law.

Accordingly, the law must be accessible (published) and its provi-sions formulated with sufficient precision to enable the personsconcerned to foresee, to a degree that is reasonable in the circum-stances, the consequences which a given action may entail and toregulate their conduct. This does not require complete precision,which would exclude the necessary interpretation in the applica-tion of laws. However, it requires a certain level of foreseeability,which depends on the content of the instrument in question, thefield it is designed to cover and the number and status of those towhom it is addressed.

Should the Court establish that interference with a property rightwas not in accordance with the law, it does not need to considerthe legitimacy of the State’s objective or the issue of proportional-ity. In this case, there will automatically be a violation of Article 1

of Protocol No. 1 anconsider whether suaim or whether it haIn the case of Iatridiopen-air cinema, deshad been quashed sestablished that the arepossess the land iwith his property riaccordingly been a vIn the case of Belvepany’s land was exprcompetent court subtion, declaring it unsought return of thhaving concluded thhad become irreversthe restitution of lanbeen in breach of Ar

General interestFurthermore, any laerty rights may be jthe general (public) relation to deprivatition to control of uany interference wit


Permissible restrictions14

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with the peaceful enjoyment of possessions democratic society directed at achieving a

t strike a fair balance between the demands of the community and the requirements ofmental rights. Such a fair balance will note the individual property owner is made to

d excessive burden”.

aves the Contracting States certain discre-ed to as “margin of appreciation”, consider-s to be better placed to assess the existencethe necessity of the restriction, given theire social process forming their country. Forin principle be no violation of the Conven-t another measure less restrictive to a Con- one chosen in achieving a certain aim, as

s fall within the State’s margin of apprecia-nd, the Court shall certainly take into con-

ce of alternative solutions when rulingad been proportionate to the aim sought to

iation also derives from the subsidiary roleievement of Convention rights. However, it

oes hand in hand with scrutiny by the Courtention. This is why the Court shall not

g every measure the State undertakes and

lls under, must satisfy the requirement of serving a legitimateblic (or general) interest.

he notion of “public interest” is necessarily an extensive one.nce the domestic authorities have a better knowledge of theirciety and its needs, they are usually better placed than the Court establish what is in the public interest. The Court will thereforespect the domestic authorities’ judgment as to what is in theublic interest” unless that judgment is manifestly without rea-nable foundation.

r example, in the case of Former King of Greece and others v.reece, the applicants, members of the royal family, claimed that agislative measure deprived them of their ownership of some land Greece. The Government argued that the State’s legitimateterest lay in the need to protect the forests and archaeologicaltes within the contested estates and, moreover, that the contestedgislation was linked to the major public interest in preservinge constitutional status of the country as a republic. The Courtted that there had been no evidence to support the Govern-

ent’s argument on the need to protect the forests or archaeologi-l sites. On the other hand, although with some hesitation givenat the disputed law was enacted almost 20 years after Greece hadcome a republic, the Court accepted that it was necessary fore State to resolve an issue which it considered to be prejudicialr its status.

Proportionality

A measure interferingmust be necessary in alegitimate aim. It musof the general interestthe individual’s fundahave been struck wherbear “an individual an

However, the Court letion commonly referring the state authoritieof both the need and direct contact with ththis reason, there will tion should there exisvention right than thelong as both measuretion. On the other hasideration the existenwhether interference hbe achieved.

This margin of apprecof the Court in the achis not unlimited, but gforeseen by the Convrefrain from criticisin


15

ars. Like in many other cases concerningourt examined the case under the third ruleocol No. 1, the control of use of property.e domestic authorities did not undertake anynant even though the applicant made it clearn he was in, the Court concluded that the

pplicant’s use of his flat amounted to a breachd to a violation of Article 1 of Protocol No. 1.

s Compania Naviera SA v. Belgium, a numberse ships had been involved in collisions in thef Belgium, brought actions in damages inence of the pilots who were the liability of thesequently adopted legislation removing the

on of such damage and thereby retroactivelyip owners’ claims. The Court reiterated thaty (in this case claims) without any compensa-stified under specific circumstances. In the

slation with retrospective effect with the aim depriving the applicants of their claims wasent with the fair balance principle and conse-Article 1 of Protocol No. 1.


Proportionality

justifies by its margin of appreciation. Its scope depends on thecircumstances of the case, the nature of the guaranteed Conven-tion right, the nature of the legitimate aim pursued by the interfer-ence as well as the intensity of the interference.In the case of Hentrich v. France the applicant purchased someland, on which a State authority subsequently wanted to exerciseits pre-emption right. The State submitted that the public interestin the present case lay in the prevention of tax evasion. The Courtfirstly concluded that the pre-emption by the State operated arbi-trarily and selectively as well as that it was scarcely foreseeable. Onthe basis of such procedure, the Court concluded that the appli-cant as a selected victim bore an individual and excessive burdenwhich could have been rendered legitimate only if she had had thepossibility – which was refused to her – of effectively challengingthe measure taken against her. The fair balance which should bestruck between the protection of the right of property and therequirements of the general interest was therefore upset.In the case of Scollo v. Italy the applicant purchased a flat in Rome,which was occupied by a tenant. Even though the applicanthimself was a disabled person, unemployed and needed the flat forhis own use, he was not able to have the tenant evicted for a period

of almost twelve yetenancy rights, the Cof Article 1 of ProtHaving found that thaction to evict the teto them the situatiorestrictions on the aof proportionality an

In the case of Pressoof ship owners, whoterritorial waters orespect of the negligState. The State subright to compensatiextinguishing the shthe taking of properttion may only be jupresent case the legiand consequence ofconsidered inconsistquently in breach of


ol No. 1 to other articles of the Convention16

T her articles of the CWriinFopanisafuplintoofplprpoAanTsoAonsttio

stance of property is protected by Article 1cedural guarantees for enjoyment of prop-hey are considered civil rights, are providedhus, when property rights are at stake, an

ccess to court, rely on various proceduralately, request an enforcement of judicial

m these proceedings.onvention, such as Articles 3 and 10, have

ications concerning protection of property,ance appears to be only slight and the perti-sparse, their relations with Article 1 of Pro- delved into.

ol No. 1 and Article 3 of the Con-

ccur that when the applicants raise com-ocial or pension insurance entitlements,ay be considered property, they also rely onntion under its inhuman or degrading treat-nvention organs, however, have been reluc- complaints. In the Predojević and others v.rt declared inadmissible as manifestly ill-

ts’ complaints that their being deprived of

The relationship of Article 1 of Protoc

he relationship of Article 1 of Protocol No. 1 to otonventionhen peaceful enjoyment of possessions is at stake, also other

ghts enshrined in the Convention and its protocols may cometo play.r example, in cases where an individual has the right to live in articular residence, interference with this right will be scruti-sed under Article 1 of Protocol No. 1. If the residence is at theme time the home of that person, also his or her right to peace-l enjoyment of home, protected by Article 8, may come intoay. Likewise, complaints concerning the destruction of a build-g may be considered as an infringement of the applicant’s right home and/or privacy as well as the right to peaceful enjoyment possessions. While the right to respect for person’s home orace of work is protected by Article 8 of the Convention, theemises concerned usually constitute a possession for the pur-ses of Article 1 of Protocol No. 1.

significant part of legislation concerning spatial planning, taxesd environmental protection interferes with property rights.

hese provisions normally make a distinction between differentcial and economic groups which in itself means discrimination.rticle 14 of the Convention proscribes less favourable treatment certain grounds such as race, national origin, and also property

atus and provides safeguards for protection of property in addi-n to those protected by Article 1 of Protocol No. 1.

Besides, while the subof Protocol No. 1, proerty rights, as long as tfor by Article 6 § 1. Tapplicant may seek asafeguards, and, ultimdecisions resulting froOther articles of the Cbeen relied on in applbut since their significnent Court’s case-law tocol No. 1 will not be

Article 1 of ProtocventionIt can occasionally oplaints concerning swhich, in principle, mArticle 3 of the Convement heading. The Cotant to entertain suchSlovenia case the Coufounded the applican


17

h may have detrimental effects on the prop-d. The delay aspect of these complaints fallsle the outcome of proceedings under Article 1

ength of proceeding may have particularlyin times of inflation. In Aka v. Turkey, fornt succeeded in seeking an increase in com-ropriated land. The amounts of the compen-

the national authorities bore a 30% simplenflation rate at that time exceeded 70% per

ound that the difference between the amounts to the applicant when his land was expropri-ts due when the compensation was actuallyesult of the length of proceedings. This sepa-

ith the loss of his land, upset the fair balanceen maintained between the protection of theroperty and the demands of the general inter-s found infringement of Article 1 Protocolestic legislation allowed the State to profitl situation, because it was favourable to theet its obligations, i.e. perform speedy trials, as.

a different conclusion in a case where the domestic proceedings were lodged against

nd not the State. In O.N. v. Bulgaria the appli-at the domestic courts refused to take into and, at the end of the day, awarded him sumsan the real value of what he had given under


Article 1 of Protocol No. 1 and Article 6 of the Convention

military pension constituted inhuman or degrading treatment anddeprivation of property. As for the complaints made underArticle 1 of Protocol No. 1, the Court considered that the appli-cants did not meet the requirements, imposed by the domesticlaw, to be awarded a pension.

Article 1 of Protocol No. 1 and Article 6 of the Con-ventionArticle 6 §1 of the Convention protects the right to have one’s civilrights and obligations determined in the course of a fair andtimely hearing by an impartial tribunal. One of such civil rights isalso the right to property. While Article 1 of Protocol No. 1 pro-tects the substance of the right to property, Article 6 §1 providesprocedural guarantees for resolution of disputes concerning prop-erty. In other words, the first provision sets the requirements foradmissible interferences with property rights; the second provi-sion guarantees access to court and a fair trial in establishingwhether the interference was permissible and the property rightsdetermined fairly. If the applicants have no existing possession orat least a legitimate expectation in this respect, they cannot rely onArticle 1 of Protocol No. 1. However, no such requirement isneeded to attract the guarantees of Article 6 §1, where it is essen-tial that the outcome of the proceedings is decisive for the recog-nition or existence of the property right relied on.The alleged violation of the right to a trial within reasonable timemay raise particular questions under both provisions, sinceunduly long proceedings maintain their outcome unclear over a

period of time, whicerty rights concerneunder Article 6, whiof Protocol No. 1. Lunfavourable effect example, the applicapensation for his expsation awarded by interest, whilst the iannum. The Court fof compensation dueated and the amounpaid was, in part, a rrate loss, coupled wthat should have beright to applicant's pest. The Court thuNo. 1, because domfrom an exceptionaState, if it did not mediligently as it should

The Court came toapplicant’s claims inprivate individuals acant complained thaccount the inflationmany times lesser th



thAthtiolethde

ExguthisapticfinBudaramthPrcaupapcepaorsa

Court found a breach of the rights to a fair

erned disputes between individuals and ated, however, that Article 6 §1 has limitedes involving litigation between private par-al authorities have been held responsiblend also under Article 1 of Protocol No. 1 forforcement of domestic courts’ judgmentsersons. In Fuklev v. Ukraine the Court held

ns generated by Article 1 of Protocol No. 1sures necessary to protect the right to prop-lving litigation between private individualsre thus under an obligation to ensure thatined in the domestic legislation for thedgments are observed.

ticle 6 §1 is the principle of legal certainty,e final ruling resolving the case should notărescu v. Romania the final judgment con-

f a house nationalised to the applicant’sThereupon, the Public Prosecutor, who wasitution proceedings, brought the case to the set aside that judgment, which constituted §1 and Article 1 of Protocol No. 1.

e complaints under either Article 6 §1 orNo. 1 may occasionally result in the otherlete. However, no clear-cut rules can be


e impugned contract. The Court declared the complaints underrticle 6 and Article 1 of Protocol No. 1 inadmissible. It concludedat imposing on the State the positive obligation to remedy situa-ns of depreciation of currency and increased inflation through

gislation or judicial decision would be no less than imposing one State an obligation to guarantee the value of possessionsspite inflation or other economic phenomena.

ecution of a judgment forms an integral part of a fair trial asaranteed by Article 6 §1. Procedural guarantees enshrinederein are stripped of all essence, if the decision to which they led not honoured. When such cases arise, the Court considers theplicant deprived of the right to access to court and if the domes- proceedings concerned property rights, failing to adhere to theal decision may also result in a breach of property rights. Inrdov v. Russia, the State was ordered to pay the applicantmages for his poor health resulting from extensive exposure todioactive emissions. The Court rejected the Government’s argu-ent that the State failure to execute the judgment resulted frome lack funds and found a breach of Article 6 §1 and Article 1 ofotocol No. 1. Alleged lack of funds led to the same result in these of Prodan v. Moldova. In that case, the domestic courtsheld the applicant’s claim to declare void the contracts of sale ofartments, which the applicant had sought in the restitution pro-edings. The municipality was first ordered to provide the occu-nts of the apartments with alternative accommodation, but theder was later changed to oblige the municipality to pay compen-tion instead; however, lack of funds obstructed the enforcement

for several years. The trial and to property.

The above cases concState. It should be noapplication to the casties. Even so, nationunder this provision abelated or absent enissued against private pthat positive obligatiomay entail certain meaerty even in cases invoor companies. States athe procedures enshrenforcement of final ju

An integral part of Arwhich requires that thbe challenged. In Brumcerning restitution oparents was executed. not a party to the restSupreme Court whicha violation of Article 6

The examination of thArticle 1 of Protocol provision being obso


19

n offered by these two provisions appears tories in the Court's case-law.

ome” within the meaning of Article 8 was the United Kingdom. In that case, the appli-ied the house they had built on Guernsey fors, but they maintained a link with the housee Court found that the applicants, who hadto the house, established no other domicileently intended to remain living in the house.o consider that house their home for the pur-ut since the Protocol No. 1 was not applicablensey at the time, the Court declared inadmis- raised under that provisions. The Court has

ide interpretation of “home” in its case-law.

etween Article 8 of the Convention and No. 1 was often displayed in cases concerningontrol. The Larkos v. Cyprus case scrutinisedrning eviction upon expiry of a lease. The rel-vided for a differential treatment between thee-owned residences and those living in dwell-te individuals. The Court examined the casen conjunction with Article 8, rather than No. 1, which suggests that the tenants’ rightslar abode constitutes the right to a home anderty.



inferred from the Court’s case-law in order to determine in whatcircumstances this occurs. It appears, however, that when theresult of the domestic proceedings is decisive, the complaintsmade under Article 1 of Protocol No. 1 will be examined whereaswhen the emphasis is on the proceedings the focus will be onArticle 6 §1. For instance, in Draon v. France the Court found abreach of the applicants’ right to property, because the State hadenacted a law limiting the compensation for special burdens suf-fered as a consequences of disability, while the compensation pro-ceedings had been pending. The applicants also claimed thatimmediate application of this law violated their right to a fair trial,but the Court did not find it necessary to examine them. On theother hand, in Canea Catholic Church v. Greece the Court ruledthat denying the applicant’s legal personality because it was for-mally acquired, although exercised in practice for decades, fellfoul of Article 6 §1. The applicant church maintained that suchrefusal deprived it of the possibility to take part in legal proceed-ings to protect its property, but the Court refused to examine thiscomplaint.

Article 1 of Protocol No. 1 and Article 8 of the Con-vention

Article 8 guarantees respect for private and family life which com-prises also the right to home and correspondence. The applicantsalleging a breach of their right to home and invoking Article 8occasionally rely also on Article 1 of Protocol No. 1. The differ-

ence in the protectiobe very subtle and va

What constitutes “hdecided in Gillow v.cants had not occupnearly nineteen yearby renting it out. Theventually moved inelsewhere and apparThis was sufficient tposes of Article 8. Bto the island of Guersible the complaintsever since applied a w

The intersection bArticle 1 of Protocoltenancies and rent cthe legislation conceevant provisions protenants living in statings owned by privaunder Article 14 iArticle 1 of Protocolto reside in a particunot the right to prop



Sineofsiexofnepoholeth

ItcaBatethofdiinofriofAima ap

ndings under Article 8 and found no breach

e applicant complained about the length ofr husband from her illegally occupied flat.reach of Article 8 due to the fact that the eviction was not executed for a prolonged

s prevented the applicant from living in hercomplaints raised under Article 1 of Proto-amined, because they were essentially theder Article 8.

Zaklanac v. Croatia, where the applicante to enforce an eviction order violated his home, private and family life and his rightrt examined the issue separately underticle 1 of Protocol No. 1. Since the proceed-, the complaints were declared inadmissible

ences with property rights have been scruti- and Article 1 of Protocol No. 1, such asesidence or place of work. In Niemietz v.und the unlimited order for search of thee and seizure of documents disproportion- context of the confidentiality inherent in

n. The applicant further claimed that theiolation of Article 1 of Protocol No. 1 byon as a lawyer. Having already taken into


milarly, in the case of Sorić v. Croatia, the Court found thatither Article 8 nor Article 1 of Protocol No. 1 included the right tenant to buy certain property, namely a home. The prior provi-on only protected a person’s right to respect for his or her alreadyisting home and the latter only guaranteed peaceful possession equally already existing property. The applicant in this case hadver been the owner of the flat in question, but had been in thessession of that residence for over sixty years. That possession,wever, had not been threatened by the mere enactment of new

gislation which did not favour the applicant with the right to buye apartment he occupied under specially protected tenancy.

appears that the above approach may not be relied on in theses where the landlord’s rights are at stake. In the case of Velosarreto v. Portugal the applicant landlord was denied the right to

rminate the lease of a house he inherited, although he needede house for his own occupation. The Court found no violation Article 8, because the applicant’s need for the residence was notre, as his living conditions improved at the time of the proceed-gs. The Court went on to examine the case also under Article 1 Protocol No. 1 and found that the restriction on the applicant'sght to terminate his tenant’s lease constituted control of the use property within the meaning of the second paragraph ofrticle 1 of Protocol No. 1. This control, however, pursued a legit-ate social policy aim and the Court held that the State did strike

fair balance between the competing interests involved. Since theplicant provided no arguments in support of his claim, the

Court referred to its fiof applicant's rights.

In Cvijetić v. Croatia theviction of her formeThe Court found a bjudgment ordering theperiod of time and thihome. The applicant’s col No. 1 were not exsame as those made un

On the contrary, in alleged that the failurright to respect for histo property, the CouArticle 8 and under Arings were still pendingas premature.

Other types of interfernised under Article 8police entry into a rGermany the Court foapplicant lawyer’s officate, particularly in thethe lawyer’s professiosearch constituted a vimpairing his reputati


21

ir right to peaceful enjoyment of their posses-

ing displaced persons raise similar issues.er to allege any claim under Article 8, theuired to prove that the residence from whichas indeed their home. Such a requirement is

f the finding that Article 8 does not necessar- preferences as to their place of residence toeral interest. For instance, in the Chapman v.case the applicant bought a plot of land with ae. However, her request for planning permis-ans on her land was refused due to detrimen- on the rural character of the site. The Courte were alternatives available to the applicantn occupation on that site without planningd no violation of Article 8. For the same rea-led that the applicant’s right, protected byl No. 1, to live peacefully on the plot of land not breached.ons on spatial planning and use of land makeapplications concerning pollution and nui-ther area falling within the ambit of Article 8ocol No. 1. Even though the number of caseseen noticeably growing in the past few years,t found a violation of both of these provisionsneral, there is no provision in the Conventionigned to protect environmental interests of



consideration, in the context of Article 8, the potential effects ofthe search on the applicant’s professional reputation, the Courtfound no separate issue under Article 1 of Protocol No. 1.Similarly, in McLeod v. the United Kingdom the applicant’s formerhusband, accompanied by the police, entered into their formermatrimonial house, where the applicant was living at the time, inorder to collect his belongings. The Court considered that theaims of preserving the peace or prevent a crime could generallyjustify the police entering into a home. Nevertheless, in thepresent case, the police officers learned that the applicant was notat home and should therefore have not entered the house, as itshould have been clear to them that there was little or no risk ofdisorder or crime occurring. Although the applicant had relied onArticle 1 of Protocol No. 1 in the proceedings before the Commis-sion, which had found no breach of the applicant’s rights, she didnot maintain this complaint before the Court.The ultimate form of interference with the right to a home andterminal form of deprivation of property is destruction of a dwell-ing. In such cases complaints under Article 8 and Article 1 of Pro-tocol No. 1 are often raised. In the case of Selçuk and Asker v.Turkey the Court simultaneously examined the complaints underthese two articles. It found that the Turkish security forces deliber-ately burned down the applicants’ homes and household propertyobliging them to leave the village of their origin. In such circum-stances the Court saw no doubt that these acts constituted partic-ularly grave and unjustified interferences with the applicants’rights to respect for their private and family lives and homes as

well as breach of thesions.The cases concernNonetheless, in ordapplicants will be reqthey were removed wpartially the result oily allow individualsprevail over the genthe United Kingdom view to settling thersion to station caravtal effect it may haveestablished that therbesides remaining ipermission and founsons, the Court ruArticle 1 of Protocoshe had bought, wasMeasures or regulatipart of a group of sances, which is anoand Article 1 of Proton this subject has bthe Court has not yein a single case. In geor its protocols des



inexexrofatohaocwinacevplofcoNin

ItriulpeprpawprclC

uards offered by Article 8 were respectedof and the right to remain in the premises in the guarantees inherent in Article 1 of Pro-lay. Hence, if the violation alleged concernsect of the applicant’s rights and had no orn the property at issue, the Court will pri-ase only under Article 8 and hold that noder Article 1 of Protocol No. 1. The adverse

be found in the case-law of the Court. Evi-e” has been established, the Court will find 8, regardless of the conclusions made as torticle 1 of Protocol No. 1.

e as to the intersection between propertyon of home and privacy are at large applica- of correspondence, although the relevantis subject is much more scarce.

ol No. 1 and Article 10 of the Con-

nited Kingdom the authorities seized andtrix and hundreds of copies of a schoolbooklicant due to its lewd content. The Court,ontracting States had a margin of apprecia-found no breach of this provision. Examin-der Article 1 of Protocol No. 1, the Court

laint concerning the seizure could not be second sentence of Article 1 of Protocol


dividuals, however, some positive obligations are implied. Thetensive interpretation of Article 8 has allowed the Court theamination of various “environmental” complaints where envi-nmental factors directly and seriously affected private andmily life or home, including in cases where the State had failed provide effective protection of applicant's rights. On the othernd, preservation of environment, including planning policies, iscasionally the aim which justifies certain types of interferences

ith Article 8 rights. When this aim is pursued in the generalterest, it permits also the control of the use of property incordance with Article 1 of Protocol No. 1. This provision, how-er, does not guarantee peaceful enjoyment of property in aeasant environment. Moreover, it allows restrictions on the use property for environmental reasons, if a fair balance betweenmpeting interests is struck. Besides, from Article 1 of Protocolo. 1 certain positive obligations arise, in particular when carry-g out dangerous activities is involved.

appears that Article 1 of Protocol No. 1 secures ownershipghts, i.e. applicant's proprietary or economic interest in a partic-ar possession, while Article 8 guarantees the perpetuity ofaceful enjoyment of possessions; nevertheless, neither of theovisions offers unlimited protection. This idea is supported inrticular by the above cited case-law concerning tenancies from

hich it is clear that the tenants seldom succeed with their (pro-ietary) claims under Article 1 of Protocol No. 1. Another con-

usion deduced from the presented jurisprudence is that theourt first establishes whether a specific residence is a home and

considers if the safeg(access to, occupation issue). Only thereaftertocol No. 1 come into pmainly the privacy asplittle economic effect omarily scrutinise the cseparate issue arises unapproach is seldom todently, where no “homno violation of Articlethe alleged breach of AThe conclusions madrights and the protectible also to protectionCourt's case law on th

Article 1 of ProtocventionIn Handyside v. the Ulater destroyed the mapublished by the appacknowledging that Ction under Article 10, ing the complaints unfound that the compentertained under the


23

perty protected by Article 1 of Protocol No. 1 the Convention, it is incumbent on the States person under their jurisdiction has an effec-rotection of that right.

is important to note that, where the Conven-y the individual is a “civil right” recognised– such as the right to property – the protec-cle 6 §1 will also be available. In such circum-s of Article 6 §1, implying the full panoply of

e, are stricter than, and absorb, those ofases in which the Court has found a violationll not consider it necessary also to rule on anplaint made under Article 13. This is so1 constitutes a lex specialis in relation toases there is no legal interest in re-examiningt under the less stringent requirements of

13 may come into play in cases involving theere for one reason or another, Article 6 is not

yment disputes between the authorities and are acting as depositories of public authority,are, therefore, excluded from the scope ofonvention (Pellegrin v. France). In such casese into play if the employment dispute com-payment of a public servant’s already earned



No. 1 (the destruction of property), since the measure was merelya temporary one. On the other hand, the seizure did concern thecontrol of use of the applicant’s property and thus fell within theambit of the second paragraph of that article. However, the Statewas found to be the ultimate adjudicator in the matter of necessityfor interference in such cases, and the Court considered that thenotion of “general interest” encompassed in Article 1 of ProtocolNo. 1 left the states much room for interpretation. For this reason,the Court found no violation of Article 1 of Protocol No. 1. Sincethe final destruction of the books was the result of them beinglawfully adjudged illicit and dangerous to the general interest, thismeasure was also in accordance with the second paragraph ofArticle 1 of Protocol No. 1.

More recently, in Öztürk v. Turkey, the Court took a differentapproach. It held that the confiscation and destruction of copies ofa book published by the applicant was an incidental effect of hisconviction. Since the Court found a breach of Article 10, it heldthat it was not necessary to consider the applicant’s complaintsunder Article 1 of Protocol No. 1.

Article 1 of Protocol No. 1 and Article 13 of the Con-vention

According to the Court’s case-law, Article 13 guarantees to every-one who claims, on arguable grounds, that one or more of his orher Convention rights were violated, an effective remedy before anational authority.

Since the right to prois a right set forth into ensure that everytive remedy for the p

In this connection ittion right asserted bunder domestic law tion afforded by Artistances the safeguarda judicial procedurArticle 13. Thus in cof Article 6 § 1 it wiaccompanying combecause Article 6 §Article 13. In such cthe same complainArticle 13.

Nevertheless, Articleright to property, whapplicable.

For instance, emplopublic servants, whoare not “civil” and Article 6 §1 of the CArticle 13 may complained of concerns



saA

FuintoiractimAcaaped

Av

TAsicoexwjuporeorpr

is treatment was unjustifiably different toe in comparable situations.

ed Marckx v. Belgium case, the Court ruledscriminated against in disposing freely witht of illegitimate children, but found no vio-rotocol No. 1 taken on its own. Similarly, inurt found that the applicant was discrimi-

the domestic legislation gave preference to over illegitimate in succession of an entiree applicability of Article 14 linked witho. 1 in these two cases was not whether the

ghts were violated, but whether their claimsf property.

the application of Article 14 in propertythe property rights which the Contractinguarantee under the Convention. It includesat the states choose to protect voluntarily. Ine applicant complained that he was deniedfor the unemployed on the ground that he nationality. Even though the State was not security benefits to its residents, the Court scheme was established, a refusal of assist-, who met all the statutory requirements,is nationality was contrary to of Article 14ith Article 1 of Protocol No. 1.


lary (which qualifies as “possession” within the meaning ofrticle 1 of Protocol No. 1).

rthermore, Article 6 does not apply to proceedings concerningterim measures or provisional remedies. However, for a remedy be effective it must provide relief rapidly enough to avoid anyreparable harm. The regular remedies (for example, a civiltion) may not always be able to do so because they are some-

es too slow or allow for dilatory manoeuvres. Therefore,rticle 13 may require the availability of provisional remedies inses where their absence could result in irreparable harm for theplicant’s property rights. In such situations the provisional rem-ies could be the only effective remedies.

rticle 1 of Protocol No. 1 and Article 14 of the Con-ention

he prohibition of discrimination, which is encompassed inrticle 14, is one of the fundamental rights. However, this provi-on has no independent existence, but can only be relied on innjunction with other rights enshrined in the Convention. Forample, the applicant claiming that he was discriminated againstith regard to his property rights will rely on Article 14 in con-nction with Article 1 of Protocol No. 1. He will have to have assession within the meaning of this provision, but will not be

quired to establish, that his property rights were violated inder to claim that he was discriminated against. It will suffice toove that he was subject to treatment which interfered with his

possession and that ththe one offered to thos

In the already mentionthat the mother was diher property in respeclation of Article 1 of PInze v. Austria, the Conated against in that the legitimate childrenfarm. The test for thArticle 1 of Protocol Napplicants’ property rifell within the scope o

Interestingly enough, cases may go beyond States are obliged to galso property rights thGaygusuz v. Austria themergency assistance did not have Austrianobliged to offer socialfound that where suchance to the applicantsolely on the basis of htaken in conjunction w


25

tion case on the ground of property wasrs v. France. In that case a law imposed on thealler than 20 hectares the transfer of huntingssociations. The applicants, who were suchey were victims of discrimination on thee of property. The Court established that theed legislation was that only large landownersheir land as they wished, which put the appli-all owners into a discriminatory position intaken in conjunction with Article 1 of Proto-

the relationship between Article 14 and No. 1 is the question of when does the Courtints only under the substantive or discrimina-n both of them. In Chassagnou and others v.iterated: “Where a substantive article of then invoked both on its own and together withrate breach has been found of the substantive

erally necessary for the Court to consider the4 also, though the position is otherwise if a

eatment in the enjoyment of the right in ques-al aspect of the case”. In many a prominent examined the complaints under Article 1 ofent on to hold that it was either not necessarylaints under this provision taken in conjunc-

or that no separate issue arose in this respect.gardless of the outcome of the review of the



The Court has often stressed that differential treatment does notrun against Article 14 as long as it can be reasonably and objec-tively justified for the general interest. However, in determining towhat extent different treatment is necessary, the margin of appre-ciation left to the states under Article 14 is narrower than the oneunder Article 1 of Protocol No. 1. In particular to certain groundsof differentiation, such as gender and race, the Court is not sus-ceptible to accept but very well-founded arguments in order touphold less favourable treatment. In addition to these discrimina-tion criteria and illegitimacy and nationality referred to in theabove-mentioned cases, Article 14 offers a non-exhaustive list ofgrounds on which discrimination is not allowed. In the ambit ofproperty rights, discrimination on the ground of property is par-ticularly eye-catching.

Legislation on spatial planning, taxes and environmental protec-tion interfere with property rights. These provisions normallymake a distinction between different social and economic groups,occasionally on the ground of property. In Pine ValleyDevelopments Ltd and others v. Ireland the applicants bought someland in reliance on an outline planning permission for industrialwarehouses and office development. Since detailed planningapproval was not granted, the property bought sustained a loss invalue. Subsequently, legislation was adopted to remedy misappli-cation of planning law with a view of validating planning permis-sions. However, the applicants were not granted planningpermission. Their complaint that they were discriminated againstin comparison with other landowners was upheld by the Court.

Another discriminaChassagnou and otheowners of estates smrights to hunting aowners, claimed thground of the seizurresult of the impugnwere entitled to use tcants and other smbreach of Article 14 col No. 1.

Another aspect of Article 1 of Protocolconsider the complation angle, and wheFrance the Court reConvention has beeArticle 14 and a sepaArticle, it is not gencase under Article 1clear inequality of trtion is a fundamentjudgment the CourtProtocol No. 1, but wto examine the comption with Article 14 The Court did so re


The admissibility criteria26

sunoplAfrcacofr

The burden then falls on the State to estab-treatment was in accordance with the law,im and that the means employed were pro-. It should be noted that when the groundroperty, the margin of appreciation offeredthan when the gender, nationality, social

used as criterion for differentiation.

T

EA(cwCthMUthtomtrin

were unable to properly use the domesticheir own failure to comply with the formal-limits, their complaint shall be declaredxhaustion (see Sirc v. Slovenia).

na Convention on the Law of Treaties ofenna Convention”) provides that, unless aears from the treaty or is otherwise estab-o not bind a party in relation to any act orr any situation which ceased to exist before

into force of the treaty with respect to that

bstantive complaint. On the other hand, when the Court finds breach of the substantive provision, it often examines the com-

aints under Article 14.rticle 14 thus protects the right to enjoy the property rights freeom discrimination. When relying on this provision, the appli-nt must prove to have had a possession under Article 1 of Proto-l No. 1 and that he or she, in exercising the rights originating

om this possession, was treated less favourably than others in

comparable situation. lish that the different pursued a legitimate aportionate to that aimfor differentiation is pto the State is wider status and the like are

he admissibility criteria

xhaustion of domestic remediesccording to the generally recognised rules of international lawited in Article 35 of the Convention), the Court may only dealith the matter after all domestic remedies have been exhausted.omplaints under Article 1 of Protocol No. 1 are no exception tois rule (see Docevski v. “the former Yugoslav Republic ofacedonia” and Krisper v. Slovenia). nder Article 35 § 1, the applicants are under an obligation to usee remedies provided under the national law which are sufficient afford redress in respect of the breaches alleged. The complaintust have been brought before the competent judicial or adminis-ative authority and taken to the highest instance available – forstance before the Constitutional Court in Croatia and in Slove-

nia. If the applicants remedies because of trequirements or timeinadmissible for non-e

Ratione temporisArticle 28 of the Vien23 May 1969 (“the Vidifferent intention applished, its provisions dfact which took place othe date of the entry party.


27

ses where the interference pre-dates ratificationl to remedy it post-dates ratification, to retainlatter act in determining the Court’s temporalld result in the Convention being binding for

ation to a fact that had taken place before thered into force in respect of that State. However,ntrary to the general rule of non-retroactivitydied in Article 28 of the Vienna Convention].

ding a remedy usually presupposes a findingence was unlawful under the law in force whenoccurred (tempus regit actum). Therefore, anydy, on the basis of the Convention, an interfer-nded before the Convention came into force,

ly lead to its retroactive application.

hile it is true that from the ratification datehe State’s acts and omissions must conform to(see Yağcı and Sargın v. Turkey, judgment of

ries A no. 319-A, p. 16, §40), the Conventioncific obligation on the Contracting States toor wrongs or damage caused prior to that date. Slovakia [GC], no. 44912/98, §38, ECHRther approach would undermine both the prin-oactivity in the law of treaties and the funda-ion between violation and reparation that of State responsibility.


Ratione temporis

In their case-law the Commission and the Court have firmlyendorsed this general rule of international law (see, notably, Blečićv. Croatia).

Accordingly, the Court is not competent to examine applicationsagainst a State in so far as the alleged violations are based on factshaving occurred before the date of the entry into force of the Con-vention in respect of that State. However, the question of whetheran alleged violation is based on a fact occurring prior or subse-quent to a particular date gives rise to difficulties when the factsrelied on fall partly within and partly outside the period of theCourt’s competence.

In the case of Blečić v. Croatia the Court has consolidated its case-law on the matter and elaborated the principles governing its tem-poral jurisdiction in the following way:

1. [T]he Court’s temporal jurisdiction is to be determined in rela-tion to the facts constitutive of the alleged interference. Thesubsequent failure of remedies aimed at redressing that interfer-ence cannot bring it within the Court’s temporal jurisdiction.

2. An applicant who considers that a State has violated his rightsguaranteed under the Convention is usually expected to resortfirst to the means of redress available to him under domesticlaw. If domestic remedies prove unsuccessful and the applicantsubsequently applies to the Court, a possible violation of hisrights under the Convention will not be caused by the refusal toremedy the interference, but by the interference itself, ….

3. Therefore, in cawhile the refusathe date of the jurisdiction wouthat State in relConvention entethis would be coof treaties [embo

4. Moreover, afforthat the interferthe interference attempt to remeence that had ewould necessari

5. In conclusion, wonwards all of tthe Convention 8 June 1995, Seimposes no speprovide redress f(see Kopecký v2004-IX). Any ociple of non-retrmental distinctunderlies the law



6.

TcilofladuexNFethshwWincaanSuupoffo19tio

violations of her rights to respect for herenjoyment of her possessions, as guaranteednvention and Article 1 of Protocol No. 1 to

under Croatian law in force at the materialcted tenancy was considered to be termi- court judgment upholding the claim of the terminate such a tenancy became res judi-d that the termination of the applicant’sn the Supreme Court gave its judgment onat was before the date of entry into force ofpect of Croatia. It was that judgment thatd interference with the applicant’s rightsn and not the subsequent Constitutional merely allowed that already existing inter-

eld that in those circumstances the Consti- not have applied the Convention when Court’s judgment without having faced theicle 28 of the Vienna Convention.

vant fact giving rise to the application wasudgment of 15 February 1996, and not the decision of 8 November 1999, the Court

ion of the merits of the case could not haveout extending its temporal jurisdiction to aof its date, was not subject thereto. To do so

In order to establish the Court’s temporal jurisdiction it istherefore essential to identify, in each specific case, the exacttime of the alleged interference. In doing so the Court must takeinto account both the facts of which the applicant complainsand the scope of the Convention right alleged to have been vio-lated.

he Blečić case concerned the termination of the applicant’s spe-ally protected tenancy of her flat in Zadar on account of her pro-nged absence during the war. In July 1991 the applicant left hert and went to visit her daughter in Rome for the summer. Sincering her absence the war had escalated and Zadar had beenposed to constant shelling, she decided to stay in Rome. Inovember 1991 a certain M.F. and his family occupied her flat. Inbruary 1992, the local authorities brought a civil action againste applicant for termination of her tenancy, on the ground thate had been absent from the flat for more than six monthsithout justified reason.hile the first-instance court ruled against the applicant accept-g the local authorities’ claim for the termination of the appli-nt’s tenancy, the second-instance court reversed that judgmentd dismissed their claim. Eventually, on 15 February 1996, thepreme Court reversed the second-instance judgment andheld that of the first-instance, which thereby acquired the force

res judicata. On 8 November 1999, that is, after the entry intorce of the Convention in respect of Croatia on 5 November97, the Constitutional Court dismissed the applicant’s constitu-nal complaint against the Supreme Court’s judgment.

The applicant allegedhome and to peaceful by Article 8 of the Cothe Convention.

The Court noted that time a specially protenated at the moment aprovider of the flat tocata. The Court fountenancy occurred whe15 February 1996. Ththe Convention in resconstituted the allegeunder the ConventioCourt decision whichference to stand.

Moreover, the Court htutional Court couldreviewing the Supremedifficulty posed by Art

In sum, since the relethe Supreme Court’s jConstitutional Court’sheld that an examinatbeen undertaken withfact which, by reason


29

the applicant – a Greek Cypriot – was the northern Cyprus, which she had been forcedrkish occupation of that part of the island inrt she complained under Article 1 of Protocol been continuously prevented from havingy by the Turkish forces.

ment claimed inter alia that the applicant’s irreversibly expropriated by virtue ofnstitution of the Turkish Republic of North-NC”) of 7 May 1985, prior to Turkey’s decla-0 accepting the Court’s jurisdiction.

om international practice and resolutions ofl bodies that the international community didC as a State under international law and that remained sole legitimate Government ofas unable to attribute legal validity for the

vention to provisions such as Article 159 oftion. Accordingly, the applicant could not betitle to property and the alleged violation wasature.

remained legal owner, the Court went on to refused to access to her property since 1974,st all control as well as all possibilities to usentinuous denial of access amounted to inter-nder Article 1 of Protocol No. 1. In as muchnment had not sought to justify interference,


Ratione temporis

would have been contrary to the general rules of international law.Therefore, the application was found to be incompatible rationetemporis with the provisions of the Convention.

The Court has followed the same approach in the subsequent caseof Mrkić v. Croatia. The case also concerned the termination of theapplicant’s specially protected tenancy. However, in that case theapplicants’ tenancy was terminated already in the moment whenthe second-instance court dismissed the applicants’ appeal andupheld the first-instance judgment against them, which therebybecame res judicata. As this had occurred in March 1997, i.e.before the entry into force of the Convention in respect of Croatia,it did not matter that, unlike in the Blečić case, both the decision ofthe Supreme Court and the decision of the Constitutional Courtthat followed were rendered after the ratification. It is true that theapplicants’ complained under Article 8 of the Convention butgiven the Blečić case there is a little doubt that the conclusionwould have been the same had they also complained underArticle 1 of Protocol No. 1.

The above considerations apply only to cases in which the inter-ference complained of takes the form of an instantaneous act.However, when the alleged violation relates to a continuing situa-tion, which lasts after the entry into force of the Convention inrespect of the State concerned, the Court has jurisdiction toexamine the period following the ratification.

The Court has recognised the concept of a continuing violation inthe context of the right to property in the case of Loizidou v.

Turkey. In that caseowner of a house into leave after the Tu1974. Before the CouNo. 1 that she hadaccess to her propert

The Turkish Governproperty had beenArticle 159 of the Coern Cyprus (“the TRration of January 199

As it was evident frvarious internationanot regard the TRNRepublic of CyprusCyprus, the Court wpurposes of the Conthe TRNC Constitudeemed to have lost thus of continuing n

Since the applicant find that having beenshe had effectively loand enjoy it. Thus coference with rights uas the Turkish Gover



thjuAPrisdisaenciminjuFolawvapestcocapearextiothaper

but about the failure to pay them compen- to them by the domestic legislation.

e same conclusion in the case of Hingitaq in which the members of the Inughuit tribened under Article 8 of the Convention ando. 1 thereto about the substantial restrictionfishing rights resulting from the establish- Base in 1951, as well as, about relocation ofeir settlement in May 1953.

aintained that they had, on a continuing their homeland and hunting territories andity to use, peacefully enjoy, develop and

e events complained of had been instanta-ken place before Denmark had ratified theer 1953) and Protocol No. 1 (May 1954). It these complaints as being incompatiblehe provisions of the Convention.

ts also complained under the above-men-he outcome of the proceedings instituted in courts with a view to obtaining compensa-

escribed interferences with their propertyeld that the events complained of had to bepropriation and awarded them compensa- compensation was however substantiallyght by the applicants.

e Court did not find such complete negation of property rightsstified. specific and unique feature of the complaints under Article 1 ofotocol No. 1 in the context of the Court’s temporal jurisdiction

that interference complained of, even if it falls outside that juris-ction, may under the domestic law generate a claim for compen-tion. If such a claim existed at the moment the Conventiontered into force in respect of the State concerned and was suffi-

ently established to be enforceable thereby giving rise to legiti-ate expectation that it may be realised, the subsequentterference with that claim would fall within the Court’s temporalrisdiction.r example, in the case of Almeida Garret v. Portugal two plots of

nd owned by the applicants had been nationalised in 1975,hereas the third plot was expropriated in 1976. Under the rele-nt legislation the applicants were entitled to payment of com-nsation for the loss of their property, but the legislation did not

ipulate how the compensation would be calculated or paid. Theurt proceedings and administrative procedures which the appli-nts instituted in order to obtain the compensation were stillnding when the Court examined the case. The Governmentgued that the Court had no jurisdiction ratione temporis toamine the applicants’ complaints as the expropriations in ques-n had occurred in 1975 and 1976 i.e. before Portugal ratified

e Convention in November 1978. The Court observed that theplicants did not complain about the deprivation of their prop-ty – which was indisputably, an instantaneous act beyond its

temporal jurisdiction –sation: a right afforded

The Court reached thand others v. Denmarkin Greenland complaiArticle 1 of Protocol Nof their hunting and ment of the Thule Airthe population from th

The applicants had mbasis, been deprived ofdenied the opportuncontrol their land.

The Court held that thneous acts that had taConvention (Septembaccordingly dismissedratione temporis with t

However, the applicantioned articles about t1996 before the Danishtion for the above drights. These courts hconsidered acts of extion. The amount oflower than the one sou


31

ons within the meaning of that provision.uestion to be asked when dealing with sucher Article 1 of Protocol no. 1 is applicable tothe conclusion after what could be a rather of this issue is the Article 1 of Protocol No. 1uch complaint is normally rejected undermpatible ratione materiae with the provisions

re based on events in a territory outside thed there is no link between those events and the jurisdiction of the Contracting State, theismissed as incompatible ratione loci with theonvention. The Convention authorities have admissibility issues concerning the Court’s

oci.

ned case Loizidou v. Turkey, the Turkish Gov-d that the applicant’s complaints concerned not within its jurisdiction ratione loci. Thethe concept of jurisdiction was not restrictedory of the Contracting States. Since it was notapplicant’s loss of control of the propertyccupation of the northern part of Cyprus bythe establishment of the “TRNC”, the Court

ent’s objection.


Ratione materiae

That being so, the impugned events, even though outside theCourt’s temporal jurisdiction, had generated a claim for compen-sation under the domestic law that continued to exist after theDenmark’s ratification of the Convention and Protocol No. 1thereto. That claim constituted a property interest protected byArticle 1 of Protocol No. 1 and distinct from the property expro-priated from the applicants in 1951 and 1953. The Court thereforeheld that these complaints did fall within its competence, buteventually found that they were manifestly ill-founded.

However, when the domestic law does not give rise to a claim forcompensation for the events that took place before the ratification,any complaint alleging violation of the Convention on thataccount will be considered incompatible ratione temporis (et mate-riae) therewith. This is so because the right to obtain compensa-tion for an injury which does not itself constitute a violation of theConvention (for example, if such injury falls outside the Court’scompetence ratione temporis) is not a right guaranteed by theConvention. Moreover, the Convention imposes no specific obli-gation on the Contracting States to provide redress for wrongs ordamage caused prior to the ratification.

Ratione materiae

The Court can deal only with complaints concerning rights whichare covered by the Convention and its protocols.

As already stated, an applicant can allege a violation of Article 1 ofProtocol No. 1 only in so far as the alleged interference relates to

his or her possessiTherefore, the first qapplications is wheththe case at issue. If lengthy examinationis not applicable, sArticle 35 §3 as incoof the Convention.

Ratione loci

Where complaints aContracting State anany authority withincomplaints will be dprovisions of the Crarely dealt with thejurisdiction ratione l

In the above-mentioernment also arguematters which wereCourt recalled that to the national territdisputed that the stemmed from the oTurkish troops and rejected the Governm


s pertaining to central and eastern Europe32

S rope

ROeapuexcopoCEuprreAWenprNfisthInwcoTreci

eous act and did not produce a continuingn of a right” of (see also Kopecký v. Slovakia

of principles) save if the ownership was not Convention entered into force like in thease. There the Court held that the retentionue by the Romanian authorities had been applicant remained the owner of the prop-omplaint therefore related to a continuingaintained. The Court found a violation ofo. 1.

e 1990s, restitution measures were adoptedcentral and eastern Europe. However, sinceo. 1 does not guarantee the right to acquireion organs held that Article 1 of Protocolreted as imposing any general obligation on to return property which was transferred toied the Convention. Nor does Article 1 of any restrictions on the Contracting States’

e the scope of property restitution or to under which they agree to restore propertyrs. The Jantner v. Slovakia case concerned

applicant had, in fact, established a genuinen Slovakia which was a condition for resti-

Specific issue

pecific issues pertaining to central and eastern Eu

estitution claimsne of the characteristics of the communist rule in central andstern Europe was widespread taking of private property intoblic ownership or control. Following the fall of communism,pectations rose for this property to be returned in natura or formpensation to be awarded, either to those who had been dis-ssessed or to their descendants. Both the Commission and the

ourt considered a number of claims against central and easternropean states in connection with expropriated or confiscateoperty and with different legal situations created following theturn of property to previous owners.s far as claims concerning taking of property after the Secondorld War are concerned, the Convention institutions consist-tly rejected them holding that the applicants had no existingoperty right at the time when the Convention and Protocolo. 1 came into force in those countries. Expropriations and con-cations which occurred before that time were held to be outsidee Commission’s and the Court’s jurisdiction ratione temporis. Malhous v. the Czech Republic restitution was not availablehere property had been transferred to other individuals whould establish that they had acquired a legal title to the property.

he Court held that the applicant possessed merely “the hope ofcognition of a property right which has been impossible to exer-se effectively”. The initial taking of property was considered in

principle an instantansituation of “deprivatiofor the recapitulation validly lost before theVasilescu v. Romania cof the property at issunlawful and that theerty. The applicant’s csituation which still mArticle 1 of Protocol N

In the beginning of thin many countries in Article 1 of Protocol Nproperty, the ConventNo. 1 cannot be interpthe Contracting Statesthem before they ratifProtocol No. 1 imposefreedom to determinchoose the conditionsrights of former ownethe issue whether the permanent residence itution.


33

Vuchetich v. Slovenia, the applicants contestedomestic courts that they, as individuals, weretution since the property at issue had been

legal person, and in the Nadbiskupijaia case the Zagreb Archdiocese (Nadbiskupija to be a religious community operating onhich was one of the conditions set by the leg-

re to be entitled to restitution of expropriatedt found that the findings of the domestic

icants did not fulfil the conditions set by theion Act were not arbitrary. The applicantsssession or legitimate expectation of realisingrticle 1 of Protocol No.1.a v. Croatia case concerned the loss of pre- applicant whose family had owned three res-

the centre of Zagreb as a result of quashing off the 1997 Denationalisation Act. The Courte applicant's pre-emption rights were claims

possessions. Since they were conditional fromf the conditions was not fulfilled, Article 1 ofot apply.once a Contracting State, having ratified theg Protocol No. 1, enacts legislation providingl restoration of property confiscated under ah legislation may be regarded as generating aprotected by Article 1 of Protocol No. 1 forhe requirements for entitlement. The same


Restitution claims

In particular, the Contracting States enjoy a wide margin of appre-ciation with regard to the exclusion of certain categories of formerowners from such entitlement. Where categories of owners areexcluded in this way, their claims for restitution cannot providethe basis for a legitimate expectation attracting the protection ofArticle 1 of Protocol No. 1.

For instance, in the Gratzinger and Gratzingerova v. the CzechRepublic case, the legislation excluded the possibility of restitutionof property to those claimants who were not Czech nationals. TheCourt held that the applicants had no legitimate expectation thattheir claim would be determined in their favour. Moreover, thebelief that a law previously in force would be changed to an appli-cants’ advantage cannot be regarded as a form of legitimate expec-tation for the purposes of Article 1 of Protocol No. 1. There is adifference between a mere hope of restitution, however under-standable that hope may be, and a legitimate expectation, whichmust be of a nature more concrete than a mere hope and be basedon a legal provision or a legal act such as a judicial decision (seealso Maltzan and others v. Germany).

The claimants should therefore fulfil all conditions set by domes-tic legislation – typically the nationality or permanent residencerequirements or any other condition. A person who complains ofa violation of his or her right to property must therefore first showthat such a right existed in the framework of domestic proceed-ings (Des Fours Walderode v. the Czech Republic).

In Bugarski and von the finding of the dnot entitled to restiexpropriated to a Zagrebačka v. SlovenZagrebačka) claimedSlovenian territory, wislation, and therefoproperty. The Courcourts that the appl1991 Denationalisattherefore had no potheir claims under ASimilarly, the Gavellemption rights of theidential buildings incertain provisions otook the view that thrather than existing the outset and one oProtocol No. 1 did nOn the other hand, Convention includinfor the full or partiaprevious regime, sucnew property right persons satisfying t



mtiotioPrwfeA

TPosabePocl

TbeatRPo

HtrurtioTpeA

ted that the radical reform of the country’s system, as well as the state of the country’s stringent limitations on compensation fornts, the Polish State had not been able toounds justifying, in terms of Article 1 ofent to which it had continuously failed overent an entitlement conferred on the appli-of other Bug River claimants, by Polish leg- has received only approximately 2% of thesation due to him. Since the relationshipthe property taken and the compensationsproportionate, the Court found a violationl No. 1.ople concerned, the Court adopted a “pilot”a systemic failure in which it has indicatedl and general measures required to remedy view to reducing the number of repetitivelicant and the Polish Government subse-endly settlement concerning not only theclaims, but also the claims of others in the

ia case concerned the applicant’s attempt tolver coins which were confiscated in 1959.r which he claimed restitution contained aon seeking restitution must show where the. The applicant was successful at first

ment was subsequently overturned. Consid-

Specific issue

ay apply in respect of arrangements for restitution or compensa-n established under pre-ratification legislation, if such legisla-n remained in force after the Contracting State's ratification ofotocol No. 1. The issue that needs to be examined in each case ishether the circumstances of the case, considered as a whole, con-rred on the applicant title to a substantive interest protected byrticle 1 of Protocol No. 1 (Broniowski v. Poland).

he Broniowski judgment concerned the alleged failure of thelish authorities to satisfy the applicant’s entitlement to compen-

tion for property in Lwów (now Lviv, in Ukraine) whichlonged to his grandmother when the area was still part ofland, before the Second World War – the so-called “Bug River

aims”.

he applicant’s grandmother along with many others who haden living in the eastern provinces of pre-war Poland was repatri-

ed after Poland’s eastern border had been redrawn along the Bugiver, in the aftermath of the Second World War. Since 1946,lish law has entitled the repatriated to compensation in kind.

owever, following the change of legislation in 1990 and variousansfers of state owned land to local authorities, the State Treas-y has been unable to fulfil its obligation to meet the compensa-n claims because it had insufficient land to meet the demand.

he Court found that the applicant’s entitlement to obtain com-nsatory property constituted possessions for the purposes of

rticle 1 of Protocol No. 1.

While the Court acceppolitical and economicfinances, might justifythe Bug River claimaadduce satisfactory grProtocol No. 1, the extmany years to implemcant, as on thousands islation. The applicantvalue of the compenbetween the value of paid was manifestly diof Article 1 of ProtocoWith nearly 80 000 pejudgment identifying appropriate individuasuch problems with aapplications. The appquently reached a friindividual applicant’s same situation.The Kopecký v. Slovakrecover golden and siThe 1991 statute undecondition that the perscoins were depositedinstance, but this judg


35

necessary to strike a fair balance between thecurrently in possession of the property and, and to assure that the requirements of theg and the prohibition on discrimination are

he Court found that restrictions on propertyvisions of housing, such as rent control legis-landlords (Hutten-Czapska v. Poland), and

the eviction of tenants (Schirmer v. Poland),ol of use of property in breach of Article 1 of

found a violation of Article 1 of Protocol and Pinc v. the Czech Republic case. In 1991er owners sought recovery of the property,

licants had acquired it at a price lower than itsthe restitution of property was granted. Theed about a violation of their right to property,ad acquired their possessions in 1967 in goodhey had been confiscated and without being sale conditions or the purchase price.

nd a violation in the Străin and others v. the applicants had been owners of a house

sed in 1950. They started restitution proceed-ugh the national authorities were aware ofhe State-owned company which managed the


Restitution claims

ering that the applicant was unable, for reasons which were imput-able to public authorities, to trace the property at issue, theChamber found a violation of Article 1 of Protocol No. 1.

However, after reviewing the Court’s case law on claims as prop-erty rights, the Grand Chamber concluded that the case-law doesnot contemplate the existence of a “genuine dispute” or an “argua-ble claim” as a criterion for determining whether there is a “legiti-mate expectation” protected by Article 1 of Protocol No. 1. On thecontrary, where the proprietary interest is in the nature of a claimit may be regarded as an “asset” only where it has a sufficient basisin national law. It may also be of relevance whether a “legitimateexpectation” of obtaining compensation arose in the context of theimpugned proceedings. This was however not the case since thefirst-instance judgment granting the applicant’s request was subse-quently overturned in the context of the same proceedings andwithout having acquired legal force. The same principle wasapplied in the Sirc v. Slovenia, where the applicant’s claims forcompensation were partially granted by the first-instance courtbut the judgment was subsequently overturned.

On the contrary, in the already mentioned Brumărescu v. Romaniajudgment, the Court found a violation of Article 1 of ProtocolNo. 1 since the Supreme Court quashed the Higher Court’s judg-ment granting the applicant’s request which had become final andwas enforced.

The Convention organs also had to address several situationscreated when previous owners claimed the return of property. In

such situations, it is interests of persons those of the ownersright to a fair hearinrespected.

In the Polish cases, tuse related to the prolation affecting the measures to controlamounted to a contrProtocol No. 1.

However, the CourtNo. 1 in the Pincovathe son of the formarguing that the apptrue value. In 1994 applicants complainclaiming that they hfaith, unaware that table to influence the

The Court also fouRomania case wherewhich was nationaliings in 1993. Althothose proceedings, t



prso

TcieracthnosaatthR

Fithprun

STintotecl

Infinte

roceeded on the assumption that it did andf that provision. As the case was later on

hamber which eventually found the case toe temporis, the question whether a speciallyn be considered a “possession” or not,eing, unresolved.nt to note that in several somewhat similarthe former Commission have found thato. 1 was not applicable, that the complaintse manifestly ill-founded, that there was nosion, or that no separate examination of thele 1 of Protocol No. 1 was necessary.United Kingdom the applicant had lived foran relationship with another woman. Theant in a house owned by the local authority.ad no tenancy or any other legal right over

partner – the tenant – died, the local auth-ings against the applicant and obtained action. In her appeal the applicant requested be set aside and the tenancy vest in her ashe tenant. The Court of Appeal dismissedholding that under the relevant law only aheterosexual couple that had married couldore the Commission the applicant com-der Article 1 of Protocol No. 1. The Com-ere had been no contractual nexus betweenlocal authority. It held that the fact that the

Specific issue

operty sold one of the apartments at issue. The applicantsught in vain to have the sale declared void.

he Court observed that Romanian law did not foresee with suffi-ent clarity and certainty the consequences for individuals’ prop-ty rights of the sale of their property by the State to a third partyting in good faith. Given the manner in which the taking ofeir property had interfered with the fundamental principles ofn-discrimination and the rule of law, the total lack of compen-

tion meant that the applicants had had to bear a disproportion-e and excessive burden incompatible with the right to respect fore peaceful enjoyment of possessions. The Court held thatomania had to return the building in question to the applicants.

nally, in the Jahn and others v. Germany case, the Court foundat in the unique context of German reunification the taking ofoperty without any compensation was considered justifiableder Article 1 of Protocol No. 1.

pecially protected tenancyhe first question to be asked when dealing with the applicationsvolving specially protected tenancy is whether Article 1 of Pro-col No. 1 is applicable to the case at issue, i.e. whether such anancy constitutes a “possession” within the meaning of that arti-e.

its first judgment in the Blečić v. Croatia case the Court did notd it necessary to decide whether or not specially protected

nancy constituted a “possession” within the meaning of Article 1

of Protocol No. 1. It pfound no violation oreferred to the Grand Cbe inadmissible rationprotected tenancy caremains, for the time bIt is, however, importacases, the Court and Article 1 of Protocol Nunder that article werviolation of that provicomplaint under ArticIn the case of S v. the many years in a lesbiother woman was a tenThe applicant herself hthat house. When herority brought proceedcourt order for her evithat the eviction ordersurviving partner of tthe applicant’s appeal surviving spouse of a claim a tenancy. Befplained, inter alia, unmission found that ththe applicant and the


37

ive months before the door had been sealed.fore be considered to be the owners of a “pos-eaning of paragraph 1 of Article 1 of Proto-

ould not claim to be victims of a violation ofrdingly, the Commission held that there had Article 1 of Protocol No. 1. The Commission case to the Court, which eventually decidedlist because in 1997 the Greek authorities hadts’ request for authorisation to open a place of

e the Court involving similar issues was theprus. In 1967 the applicant, a civil servant,te a house in which he and his family havency agreement had many features of a typical 1986 the Ministry of Finance informed thed to surrender the property. As the applicant

ttorney-General notified him that legal actionst him. The applicant, claiming that he was atitled to protection under the Rent Control

to leave. In February 1990 the governmentroceedings and in February 1992 the Districtnt against the applicant considering that aises from the State could not be regarded as ace the Rent Control Law applied only to

he applicant’s appeal to the Supreme Courty 1995.


Specially protected tenancy

applicant had been living in the house for some time without legaltitle could not constitute a possession within the meaning ofArticle 1 of Protocol No. 1. Accordingly, the applicant’s complaintwas incompatible ratione materiae with the provisions of the Con-vention.

In the case of Durini v. Italy the Commission took a more generalview that the right to live in a particular home which one does notown was not a possession within the meaning of Article 1 of Pro-tocol No. 1 and that, therefore, that provision was not applicable tothe case.

The case of Pentidis and others v. Greece concerned the applicants,Jehovah’s Witnesses, who rented a room under a private agree-ment in June 1990. The agreement specified that the room wouldbe used “for all kinds of meetings, weddings, etc., of Jehovah’s Wit-nesses”. The applicants were subsequently convicted by the Greekcourts for having established a place of worship without request-ing an authorisation from the Minister of Education and ReligiousAffairs. In November 1990 the police authorities put seals on theentrance door of the room rented by the applicants. The seals wereremoved in July 1991. Before the Commission the applicant’scomplained, inter alia, under Article 1 of Protocol No. 1 that theirright to the peaceful enjoyment of their possessions had beeninfringed by the placing of seals on the front door of the roomwhich they had rented.

The Commission noted that the applicants were tenants and notthe proprietors of the room in question and that they had been

renting it for only fThey could not theresession” within the mcol No. 1, and thus cthat provision. Accobeen no violation oflater on referred theto strike it out of its granted the applicanworship.

The first case beforcase of Larkos v. Cyrented from the Stalived since. The tenalease of property. Inapplicant that he heafailed to do so, the Awould be taken again“statutory tenant” enLaw 1983, refused instituted eviction pCourt gave judgmeperson renting premstatutory tenant, sinprivate landlords. Twas dismissed in Ma



Tththexan“panotreviAnoA

InCso“amminceapthSpcievap

t the applicant’s mere expectation that the the use of military quarters would not be considered a right of property. The appli-he use of the housing “in his capacity as a that was much lower than it would haveease. He had not signed a lease agreement, special-quarters-allocation form” suppliedes and had not suggested that use of the

uated to an agreement under private law.ovision of military quarters had been estab-he need for servicemen to be given appro-n as they had been subject to frequentice. The Court, endorsing the Commission’se, held that the right to live in a particular

y the applicant did not constitute a “posses-ing of Article 1 of Protocol No. 1. Further-” such as the applicant (who had not beenin indefinitely in premises belonging to thee authorities from performing their obliga-te property in accordance with their statu-l duties. Accordingly, the Court held that

compatible ratione materiae with the provi-n.

ed this approach in cases of Kovalenok v.vakia. In the Kovalenok case the applicantsicle 1 of Protocol No. 1 that their expulsioned them of the right to live in their flat. The

Specific issue

he Commission and the Court found a violation of Article 14 ofe Convention in conjunction with Article 8 thereof on accountat there had been no reasonable and objective justification forcluding the applicant from the protection afforded to other ten-ts. The applicant also argued that his rights as a tenant wereroperty rights” within the meaning of Article 1 of Protocol No. 1d that denying him the protection from eviction afforded toher tenants constituted a breach of Article 14 of the Conventionad in conjunction with Article 1 of Protocol No. 1. However, inew of their conclusions under Article 14 in conjunction withrticle 8, both the Commission and the Court found that it wast necessary to examine separately the complaint under

rticle 14 in conjunction with Article 1 of Protocol No. 1.

the case of J.L.S. v. Spain the Court followed the view of theommission expressed in the Durini case. The applicant, a regularldier, had obtained the use of lodgings in Madrid by signing andministrative special-quarters-allocation form” supplied by theilitary body responsible for dealing with the housing needs ofilitary personnel, who were liable to be transferred at regulartervals. Subsequently, a royal decree had been issued requiringrtain servicemen in the provisional reserve force, in which theplicant was serving, to surrender possession of their quarters toe State. The applicant was obliged to vacate the premises.anish Higher Court of Justice dismissed his application for judi-

al review of the decision requiring him to leave and upheld theiction order. The Constitutional Court dismissed his amparopeal.

The Court found tharegulations governingmodified could not becant had been given tserviceman” at a rentbeen under a private lbut an “administrativeby the army authoritiquarters could be eqPolicy regarding the prlished in response to tpriate accommodatiotransfers while in servview in the Durini casproperty not owned bsion” within the meanmore, to allow a “usereven a tenant) to remaState would prevent thtion to administer Statory and constitutionathe application was insions of the Conventio

The Court has followLatvia and H.F. v. Slocomplained under Artfrom Latvia had depriv


39

t be necessary to decide whether a specially such amounts to a “possession” but whetherpurchase the flat under favourable conditionst of Article 1 of Protocol No. 1.g, there is only one case pending before the

es a specially protected tenancy. In the case ofe applicant complains under Article 1 of Pro- though she was not the owner of the flat, sheand a legitimate expectation to buy it. Ithat will be the Court’s decision in that case.2

nd other social benefitsnsurance entitlements may be considered aser certain conditions. There is however no

e a social security payment of any kind. ia case established that there was no generalate pension under the Convention. Neverthe-ht to receive a benefit from a contributory

e either compulsory or voluntary may exist,imant has met any necessary conditions thatimposed by the state pursuant to the seconde 1 of Protocol No. 1. However, that rightd as entitling the beneficiary to receive a par-pension (see Dumanovski v. “the former

Macedonia”).

ding at the time of going to press (June 2007).


Pension rights and other social benefits

Court noted that in 1976 the applicants had acquired the right tolive in the flat at issue, which had been publicly owned. In theperiod between 1976 and 1992 the applicants’ rights over the flathad been those of the tenants, whereas the public authorities hadretained ownership. Reiterating its position in the J.L.S. case, thatthe right to live in a particular home which one does not own didnot constitute a “possession”, the Court held the complaint to beincompatible ratione materiae with the provisions of the Conven-tion.In contrast to the cases cited above, in the later case of Teteriny v.Russia the Court held that the non-enforcement of a judgmententitling the applicant to a “social tenancy agreement”, whichshould have been signed between her and the competent publicauthority, constituted a breach of Article 1 of Protocol No. 1. Inholding so the Court did not explain how a (mere) claim to have atenancy agreement concluded amounted to a “possession”,whereas the already existing tenancy (i.e. the right to live in ahome which one does not own) did not.It is worth noting that a specially protected tenancy usually gaverise to a (separate) right to purchase (privatise) the flat underfavourable conditions. As it is the basis for the right to purchase it,the termination of tenancy would regularly lead to interferencewith that right. If the claim to purchase the flat is sufficientlyestablished to be enforceable i.e. gives rise to a legitimate expecta-tion that it may be realised, than it would constitute a “possession”within the meaning of Article 1 of Protocol No. 1 and would enjoyits protection.

Therefore, it may noprotected tenancy asthe ensuing right to falls within the ambiAt the time of writinCourt, which involvGaćeša v. Croatia thtocol No. 1 that, evenhad a “possession” remains to be seen w

Pension rights aIn principle, social iproperty rights undright per se to receivThe Müller v. Austrright to an old-age stless, a property rigsocial security schemprovided that the clamay legitimately be paragraph of Articlcannot be interpreteticular amount of Yugoslav Republic of

2. The case was still pen



AwCcawprriwtrPoInthsi63anthreRpetaatGInthAthon

discriminatory. Even assuming that the advance existed since they had paid contri- the military fund in Belgrade and not the

Court found that the applicants did notrements which did not lack an objective and

.ibutions and emergency benefit was estab-n the Gaygusuz v. Austria case. There theency unemployment assistance in Austria,ed once an entitlement to employment

austed, was a pecuniary right within thef Protocol No. 1. The applicant, an Iranian,e on the basis that he did not fulfil thet. He claimed that he had suffered discrim-is property rights. Noting that unemploy-

ly be claimed by those who had contributedinsurance fund, the Court found a violationl No. 1 and of Article 14 of the Convention.tioned Stec and others v. the United Kingdom been drawn in the case-law between bene-on the basis of contributions, and thoseout reference to contributions. Under the

egislation in force provides for the payment whether conditional or not on the priorons – that legislation must be regarded astary interest falling within the ambit ofo. 1 for persons satisfying its requirements.

Specific issue

ccordingly, states are entitled to alter the amount payable in lineith reasonable economic policy. In Domalewski v. Poland theourt found that the withdrawal of veteran status from the appli-nt, a retired officer of the former Ministry of Public Security,ith consequent loss of financial benefits, was not a breach of hisoperty rights, since he was receiving the same basic pension

ghts from a contributory pension scheme as he had before theithdrawal of his status, even though he had lost other non-con-ibutory discounts and allowances (see also Storkiewicz v.land). the Janković v. Croatia case the applicant retired in 1987 frome Yugoslav People’s Army and was in receipt of a military pen-on. In 1992, the Croatian authorities assessed his pension at.22% of his previous pension. Under Article 1 of Protocol No. 1d Article 14 of the Convention, the applicant complained aboute reduction of his pension. The Court found that, since theduction of the pensions of officers of the Socialist Federalepublic of Yugoslavia (SFRY) was a means of integrating thosensions into the Croatian general pension system, the measuresken by the authorities were within the State's margin of appreci-ion and were not discriminatory (see also Schwengel v.ermany). two cases against Slovenia, Tričković and Predojević and others,e applicants, who were retired members of the Yugoslav People'srmy living in Slovenia after the break-up of the SFRY, claimedat the Slovenian social authorities should award them advance military pensions and that the conditions set out by the Slove-

nian legislation wereapplicants' rights to anbutions in the SFRY toSlovenian fund, the comply with the requireasonable justificationA link between contrlished by the Court iCourt held that emergwhich could be claimbenefit had been exhmeaning of Article 1 owas refused assistancnationality requiremenination in respect of hment benefit could onto the unemployment of Article 1 of ProtocoBefore the above-mencase, a distinction hadfits which were paid which were paid withnew approach, if the lof a welfare benefit –payment of contributigenerating a proprieArticle 1 of Protocol N


41

k, Zagreb Main Branch, in Zagreb (Croatia)of the SFRY in 1991. Under legislation appli-h savings were guaranteed by the SFRY. Since had been generally unable to access their that there had been a violation of Article 1 ofone of the applicants further complained thatlation of Article 14.

me independent in 1991 it assumed guaranteency savings deposited with banks on Slove-91, after its independence, Croatia took overhe foreign-currency savings deposited withffice was situated in Croatia or were trans-nationals into Croatian banks from other

vened in the proceedings before the Court asen the view that it is either the Ljubljana Bankte which should meet the liabilities owed tooatian branch. However, Slovenia considereds should be divided under the successiong the five states formed from the dissolvedount of savings in strong foreign currenciesCroatian branch of the Slovenian bank hasproximately 150 000 000 euros with accrued investors appear to be involved. On 29 Juneuccessor states signed the Agreement on Suc-red into force on 2 June 2004.


Banks

BanksOne of the major problems concerning property issues in succes-sor States of the Socialist Federal Republic of Yugoslavia (SFRY)relates to the so-called “old” foreign-currency savings which origi-nated in freezing of foreign currency savings accounts in theSFRY. Since these savings were guaranteed by the SFRY, differentlegal solutions were applied in different successor states followingthe break-up of the SFRY.

In Trajkovski v. “the former Yugoslav Republic of Macedonia” theapplicant complained under Article 1 of Protocol No. 1 about thepayment in State bonds of his “old” foreign-currency savings. Theclaims of the holders of the “old” savings accounts were regulatedby the 1993 Act and subsequent legislation. The State bonds couldbe used to purchase an apartment, business premises, or for otherpurposes set out by law. The applicant was also able to withdrawcertain amounts in euros.

The Court found that the contested legislative measures whichindeed substantially limited the applicant’s right to dispose of hisfunds amounted to a control of the use of property. Having regardto the need to strike a fair balance between the general interestand the right of property of the applicant, and of all those in thesame situation with him, the Court considered that the meanschosen were suited to achieving the legitimate aim pursued anddeclared the application inadmissible.

In Kovačić and others v. Slovenia, the applicants, all Croatian citi-zens, had deposited strong foreign currencies savings in accounts

at the Ljubljana Banbefore the break-up cable at the time, suc1989 the applicantsmoney. They arguedProtocol No. 1, and there had been a vio

When Slovenia becafor all foreign-currenian territory. In 19the guarantee for tbanks whose head oferred by Croatian banks.

Croatia, which intera third party, has takor the Slovenian Stacustomers of the Crthat those liabilitiearrangements amonSFRY. The total amdeposited with the been estimated at apinterest, and 140 0002001 in Vienna the scession Issues; it ente



TquSuAMpawapwsowtoInanplnocuTfoSaatonmdethvare

2006 Bosnia and Herzegovina (that is, theebt, under section 1 of the Old Foreign-Cur-6.olation of Article 6 §1, since the essence of access to court protected by Article 6 of theired due to non-enforcement of the judg-ase of her funds. While the Court appreci-t of “old” foreign-currency savings mightfore or during the dissolution of the formerration of its banking and monetary systems,ll to be invoked and examined prior to aination of a case and where the courts haveissue, their ruling should not be called intolso found a violation of Article 1 of Protocol

and Herzegovina the applicant deposited commercial bank during the 1970s and92 Bosnia and Herzegovina took over the

oreign-currency savings from the formeras never been able to dispose freely of hiss statutory provisions. The applicant couldavings to privatisation coupons which hepurchase State-owned companies. Undercan expect to receive approximately 500 remaining amount of his savings in State6 the Court declared the application admis-

Specific issue

he Court declared the applications admissible and joined theestion of compliance with the six-month rule to the merits.bsequently, the Court decided to strike out the cases under

rticle 37 §1.b and c on the grounds that two of the applicants,r Kovačić and Mr Mrkonjić, had in the meantime receivedyment in full of their foreign currency deposits in the frame-

ork of execution proceedings brought in Croatia. As to the thirdplicant, Ms Golubović, the Court considered that in cases in

hich liability for a former State’s debt was disputed by the succes-r States, a claimant could reasonably be expected to seek redresshere other claimants had been successful. It was still open to her bring proceedings in Croatia. Jeličić v. Bosnia and Herzegovina, the first case against Bosniad Herzegovina to be declared admissible, the applicant com-ained under Article 1 of Protocol No. 1 and Article 6 about then-enforcement of a judgment ordering the release of her foreignrrency savings.

he applicant placed a sum of money in German marks in tworeign-currency savings accounts at the former Privredna bankarajevo Filijala Banja Luka before the break-up of the SFRY. She

tempted unsuccessfully to withdraw her savings from the bank several occasions. On 26 November 1998 she obtained a judg-

ent ordering her bank to release all sums on her accounts plusfault interest and legal costs. On 18 January 2002, according toe domestic legislation and following the completion of the pri-tisation of the bank, the money in the applicant’s foreign-cur-ncy accounts became a public debt attributable to the Republika

Srpska. On 15 April State) took over that drency Savings Act 200The Court found a vithe applicant’s right ofConvention was impament ordering the releated that a major parhave ceased to exist beSFRY and the disintegsuch circumstances fefinal domestic determfinally determined an question. The Court aNo. 1.In Suljagić v. Bosnia foreign currency in a1980s. Although in 19guarantee for “old” fSFRY, the applicant hsavings, due to variouhave converted his scould have used to recent legislation, he euros in cash and thebonds. On 20 June 200sible.


43

ens’ Deposits (State Guarantee of Reimburse-ed a system for the indexed savings to be, taking into consideration the account-unt on deposit and other criteria. The appli-proceedings in Ukraine complained under

No. 1.epresenting the indexed value of the depositslation, the Court noted that their availabilityounts which the State allocated to the Treas- conditions. The proceedings in the domestic

erefore, concern existing possessions thatlicants. In that connection, the Court reiter-o the indexation of savings as such was note 1 of Protocol No. 1, and declared the appli-

ia the applicant complained under Article 1 ofhe value of his personal savings, which he hadSavings Bank, had significantly dropped fol- reforms, and that the State had not properlytion to revalue the deposits in order to offsetn, even though it had assumed that obligation Act. The Court further noted that the Statedertaken such an obligation by enacting thethe purpose of creating a State-supportedaluing monies deposited with the bank beforeAct provided for the savings to be convertedat guaranteed the same purchasing power as


Banks

The Court has also examined applications concerning the reduc-tion of the value of savings in other central and east Europeanstates.In Rudzińska v. Poland the applicant complained under Article 1of Protocol No. 1 that the State failed in its obligations as regardsfinancial assistance relating to the housing savings accountopened under the 1983 legislation. In particular, following the1993 and 1996 change of legislation, her savings were no longersubject to reassessment such as to offset in full the effects of infla-tion. The Court was of the view that a general obligation on statesto maintain the purchasing power of sums deposited with bankingor financial institutions by way of a systematic indexation ofsavings cannot be derived from Article 1 of Protocol No. 1. Insofaras the applicant’s complaint could be understood that as a result ofthe reduction of the scope of guarantees offered by the State topersons possessing housing savings accounts, the applicant couldnot become an owner of a house for which she had been saving,the Court recalled that Article 1 of Protocol No. 1 did not recog-nise any right to become the owner of property and declared theapplication inadmissible.In Gayduk and others v. Ukraine the applicants were Ukrainiannationals who opened savings accounts with the Ukraine SavingsBank, which until 1992 was an integral part of the USSR SavingsBank. At the material time, the payment of savings was guaranteedby the State. In 1996 the Ukrainian authorities implemented amonetary reform affecting the applicants’ deposits which alreadyconsiderably depreciated as a result of inflation. In addition, the

1996 Ukrainian Citizment) Act establishrepaid progressivelyholder’s age, the amocants who brought Article 1 of ProtocolAs to the amounts runder the 1996 legisdepended on the amury subject to certaincourts did not, thbelonged to the appated that the right tguaranteed by Articlcation inadmissible.In Appolonov v. RussProtocol No. 1 that tdeposited with the lowing the economicdischarged its obligathe effects of inflatiounder 1995 Savingshas nevertheless unSavings Act with scheme aimed at rev20 June 1991. That into special bonds th



thth

TaAtapaofapexinexTcahala

editor of the State on account of the VAT in it had at least a legitimate expectation ofefund. The impossibility of obtaining reim- tax therefore amounted to violation.zech Republic, where the complaints related foreseeability of income tax legislation and

mpany rather than an individual, the Courtre may be an obligation to take specialistould be a factor in assessing whether or notiently foreseeable. in examining tax issues under Article 1 of compared with its approach in examining tax proceedings which in principle do notless the nature of the offence or the severityld be deemed to have a criminal character

nce).

Specific issue

at offered by the national currency in 1990. The Court declarede application inadmissible (see also Grishchenko v. Russia).

xesrticle 1 expressly recognises the power of States to determinexes, impose penalties and fines. Measures taken to secure theiryment are considered under the second paragraph of Article 1 Protocol No. 1 as a control of use. States enjoy a wide margin ofpreciation in this area. However, if raising of taxes places ancessive burden on the person concerned or fundamentallyterferes with his financial position, the Convention organs mayamine the application.

he Court has also held in the Buffalo S.r.l. in liquidation v. Italyse that when national authorities have established that the taxs been overpaid, the delay in its reimbursement amounts to vio-

tion. Similarly, in S.A. Dangeville v. France, the Court noted that

the applicant was a crwrongly paid and thatbeing able to obtain a rbursement of overpaidIn Špaček, s.r.o. v. the Cto the accessibility andthe applicant was a cohas suggested that theadvice, and that this wthe measure was sufficThe Court’s approachProtocol No. 1 may beallegations concerningfall under Article 6 unof the punishment cou(see Bendenoun v. Fra


45

nited Kingdom [GC], no. 27238/95, ECHR

ers v. France [GC], nos. 25088/94, 28331/95 1999-III. 71549/00, 26 February 2004

e v. the Czech Republic (dec.), no. 40057/98,

mer Yugoslav Republic of Macedonia” (dec.),ober 2001er Yugoslav Republic of Macedonia” (dec.), no.ber 2001d (dec.), no. 34610/97, ECHR-2000], no. 1513/03, 6 October 2005 former Yugoslav Republic of Macedonia”,mber 2005

9217/91, no. 19217/91, Commission decisionR 76B

ece and others v. Greece [GC], no. 25701/94,

. 71186/01, 7 June 2005c.), no. 3389/02, 21 September 2006

. Ukraine (dec.), 45526/99, 2 July 2002


Taxes

List of cases

Agrotexim and others v. Greece, judgment of 24 October 1995,Series A no. 330-AAka v. Turkey, judgment of 23 September 1998, Reports of Judg-ments and Decisions 1998-VIAlmeida Garrett, Mascarenhas Falcão and others v. Portugal,nos. 29813/96 and 30229/96, ECHR 2000-IAndrosov v. Russia, no. 63973/00, 6 October 2005Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, ECHR 2006-Appolonov v. Russia (dec.), no. 67578/01, 29 August 2002Belvedere Alberghiera S.r.l. v. Italy, no. 31524/96, ECHR 2000-VIBendenoun v. France, no. 12547/86, 24 February 1994Blečić v. Croatia [GC], no. 59532/00, ECHR 2006-Broniowski v. Poland [GC], no. 31443/96, ECHR 2004-VBrumărescu v. Romania [GC], no. 28342/95, ECHR 1999-VIIBuffalo S.r.l. in liquidation v. Italy, no. 38746/97, 3 July 2003Bugarski and Von Vuchetich v. Slovenia (dec.), no. 44142/98, 3 July2001Burdov v. Russia, no. 59498/00, ECHR 2002-IIIBuzescu v. Romania, no. 61302/00, 24 May 2005Canea Catholic Church v. Greece, judgment of 16 December 1997,Reports of Judgments and Decisions 1997-VII

Chapman v. the U2001-IChassagnou and othand 28443/95, ECHRCvijetić v. Croatia, noDes Fours WalderodECHR 2004–VDjidrovski v. “the forno. 46647/99, 11 OctDocevski v. “the form66907/01, 22 NovemDomalewski v. PolanDraon v. France [GCDumanovski v. “theno. 13898/02, 8 DeceDurini v. Italy, no. 1of 12 January 1994, DFormer King of GreECHR 2000-XIIFuklev v. Ukraine, noGaćeša v. Croatia (deGayduk and others v


List of cases46

GJuGnoGGSeHHSeHnoHH20HSeHIaImInJa72

United Kingdom, judgment of 21 February

. 43440/98, 12 October 200039050/97, 4 March 2003rzegovina, no. 41183/02, ECHR 2006-…o. 41917/98, ECHR 1999-VC], no. 44912/98, ECHR 2004-IX.v. Slovenia, nos. 44574/98, 45133/98 and 2006

ec.), no. 54264/00, 15 February 2001.. 40290/98, 9 March 2004

c.), no. 47825/99, 25 avril 2002, no. 29515/95, ECHR 1999-Iec.), no. 50115/99, 7 December 2000.dgment of 18 December 1996, Reports ofns 1996-VI

ch Republic (dec.), no. 33071/96, ECHR

ermany (dec.) [GC], nos. 71916/01, 71917/R 2005-gment of 13 June 1979, Series A no. 31Kingdom, judgment of 23 September 1998,and Decisions 1998-VII

aygusuz v. Austria, judgment of 16 September 1996, Reports ofdgments and Decisions 1996-IVratzinger and Gratzingerova v. the Czech Republic (dec.) [GC],. 39794/98, ECHR 2002-VII

rishchenko v. Russia (dec.), no. 75907/01, 8 July 2004illow v. the United Kingdom, judgment of 24 November 1986,ries A no. 109adžić v. Croatia (dec.), no. 48788/99, 13 September 2001andyside v. the United Kingdom, judgment of 7 December 1976,ries A no. 24entrich v. France, judgment of 22 September 1994, Series A. 296-A

.F. v. Slovakia (dec.), no. 54797/00, 9 December 2003ingitaq and Others v. Denmark (dec.), no. 18584/04, ECHR06-

oly Monasteries (The) v. Greece, judgment of 9 December 1994,ries A no. 301-A utten-Czapska v. Poland [GC], no. 35014/97, ECHR 2006-tridis v. Greece [GC], no. 31107/96, ECHR 1999-IImobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999-V

ze v. Austria, judgment of 28 October 1987, Series A no. 126hn and others v. Germany [GC], nos. 46720/99, 72203/01 and552/01, ECHR 2005-

James and others v. the1986, Series A no. 98Janković v. Croatia, noJantner v. Slovakia, no.Jeličić v. Bosnia and HeJ.L.S. v. Spain (dec.), nKopecký v. Slovakia [GKovačić and others 48316/99, 6 NovemberKovalenok v. Latvia (dKačmár v. Slovakia, noKrisper v. Slovenia (deLarkos v. Cyprus [GC]Lazarević v. Croatia (dLoizidou v. Turkey, juJudgments and DecisioMalhous v. the Cze2000-XIIMaltzan and others v. G01 and 10260/02, ECHMarckx v. Belgium, judMcLeod v. the United Reports of Judgments


47

o. 49806/99, ECHR 2004-III (extracts)(dec.), no. 45223/99, ECHR 1999-VIom, no. 11716/85, Commission decision of 14 and Reports (DR) 47nce, no. 36677/97, 16 April 2002o. 68880/01, 21 September 2004y (dec.), no. 52442, ECHR 2000urkey, judgment of 24 April 1998, Reports of

sions 1998-IIno. 60750/00, 20 July 2004, no. 44580/98, 22 June 2006nch Laboratories Ltd v. the Netherlands, no.on decision of 4 October 1990, Decisions and

70o. 67099/01, 12 July 2005), no. 43447/98, 16 March 2000g v. Ukraine (dec.), no. 48553/99, 27 Septem-

ech Republic, no. 26449/95, 9 November 1999roth v. Sweden, judgment of 23 September

e United Kingdom (dec.) [GC], nos. 65731/01published in ECHR 2005omania, no. 57001/00, ECHR 2005-


Taxes

Mellacher and others v. Austria, judgment of 19 December 1989,Series A no. 169Mrkić v. Croatia (dec.), no. 7118/03, 8 June 2006Müller v. Austria, no. 5849/72, Commission report of 1 October1975, Decisions and Reports (DR) 3Nadbiskupija Zagrebačka v. Slovenia (dec.), no. 60376/00, 27 May2004Niemietz v. Germany, judgment of 16 December 1992, Series Ano. 251-BO.N. v. Bulgaria (dec.), no. 35221/97, 6 April 2000Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004-XIIÖztürk v. Turkey [GC], no. 22479/93, ECHR 1999-VIPapamichalopoulos and others v. Greece, judgment of 24 June 1993,Series A no. 260-BPellegrin v. France [GC], no. 28541/95, ECHR 1999-VIIIPentidis and others v. Greece, no. 23238/94, Commission’s report of27 February 1996, Reports of Judgments and Decisions 1997-IIIPincová and Pinc v. the Czech Republic, no. 36548/97, ECHR2002-VIIIPine Valley Developments Ltd and others v. Ireland, judgment of 29November 1991, Series A no. 222Predojević and others v. Slovenia (dec.), nos. 43445/98, 49740/99,49747/99 and 54217/00, 7 June 2001Pressos Compania Naviera S.A. and others v. Belgium, judgment of20 November 1995, Series A no. 332

Prodan v. Moldova, nRudzińska v. Poland S v. the United KingdMay 1986, DecisionsS.A. Dangeville v. FraSchirmer v. Poland, nSchwengel v. GermanSelçuk and Asker v. TJudgments and DeciShmalko v. Ukraine, Sirc v. Slovenia (dec.)Smith Kline and Fre12633/87, CommissiReports (DR) 66, p.Solodyuk v. Russia, nSorić v. Croatia (dec.Sovtransavto Holdinber 2001Špaček, s.r.o. v. the CzSporrong and Lönn1982, Series A no. 52Stec and Others v. thand 65900/01, to be Străin and others v. R


List of cases48

St9 StSvCTeTr15TrnoTr

, no. 45434/99, 12 December 2000.

s v. the Netherlands, judgment of 26 June

judgment of 22 May 1998, Reports of Judg-998-III

rtugal, judgment of 21 November 1995,

0/78, Commission decision of 13 December

ec.), no. 48794/99, 15 November 2001

ran Greek Refineries and Stratis Andreadis v. Greece, judgment ofDecember 1994, Series A no. 301-Borkiewicz v. Poland (dec.), no 39860/98, ECHR 1999enska Managementgruppen AB v. Sweden (dec.), no. 11036/84,ommission decision of 1 December 1985, DR 45, p. 211.teriny v. Russia, no. 11931/03, 30 June 2005e Traktörer AB v. Sweden, judgment of 7 July 1989, Series A no.9ajkovski v. “the former Yugoslav Republic of Macedonia” (dec.),. 53320/99, ECHR 2002-IVičković v. Slovenia (dec.), no. 39914/98, 27 May 1998

Truhli v. Croatia (dec.)

Van Marle and other1986, Series A no. 101

Vasilescu v. Romania, ments and Decisions 1

Velosa Barreto v. PoSeries A no. 334

X v. Germany, no. 8411979

Zaklanac v. Croatia (d

http://www.coe.int/human_rights/These human rights handbooks are intended as a very practical guide to how particular articles of the European Convention on Human Rights have been applied and interpreted by the European Court of Human Rights in Strasbourg. They were written with legal practitioners, and especially judges, in mind, but are accessible also to other interested readers.

Directorate General of Human Rights and Legal AffairsCouncil of EuropeF-67075 Strasbourg Cedex

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