Alexander Troyan, Legal Assistant at Barristers LLP, “Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms: Practical and Theoretical Aspects”

Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms: Practical and Theoretical Aspects

In general, Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms is aimed at protecting individuals from any state interference with their right to peaceful enjoyment of their property—that is, protecting the right to private property.

Article 1 of the First Protocol to the Convention states that every natural or legal person has the right to peaceful enjoyment of their property.  No one may be deprived of his or her property except in the public interest and subject to the conditions provided for by law and the general principles of international law. 

However, the foregoing provisions in no way limit the right of the State to enact such laws as it deems necessary to regulate the use of property in accordance with the public interest or to ensure the payment of taxes, other charges, or fines.

According to the European Court of Human Rights, the term “property” has an autonomous interpretation. The scientific and methodological guide “Application of the Case Law of the European Court of Human Rights in the Administration of Justice,” prepared by the OSCE, states that the ECHR includes the following within the concept of “property”:

- all of a person’s “own” property that may form part of an estate and that can be bequeathed (the Marckx case, judgment of April 27, 1979, para. 64), that is, existing possessions;
- real property, in particular estates (The Former King of Greece and Others v. Greece, Application No. 25701/94, judgment of November 23, 2000), land and a house, houses (“Sporrong and Lönnroth v. Sweden,” judgment of September 23, 1982, applications Nos. 7151/75; 7152/75, Series A, No. 52) and other real property;
- income derived from property, in particular rent provided for in a contract voluntarily entered into in accordance with the law (“Mellacher and Others v. Austria” (Mellacher and Others v. Austria), Applications Nos. 10522/83; 11011/84; 11070/84, Judgment of December 19, 1989);
- movable property, such as a painting (in particular, Van Gogh’s “Portrait of a Young Peasant” was the subject of the case “Beyeler v. Italy” [GC] of January 5, 2000, Application No. 33202/96), or a person’s belongings located in their home (“Novoseletskiy v. Ukraine,” Application No. 47148/99, Judgment of February 22, 2005);
- bank deposits (Haiduk and Others v. Ukraine (Final Decision on the Admissibility of Applications Nos. 45526/99 […], lodged by Ivan Yuriyovych Haiduk and Others against Ukraine, dated July 2, 2002);
- share in a pension fund (“Müller v. Austria,” decision on the admissibility of application No. 6849/72, filed by Christian Müller v. Austria on December 16, 1974;
- funds/awarded amounts due to the applicants pursuant to a final and binding arbitral award (“Stran Greek Refineries and Stratis Andreadis v. Greece” (Stran Greek Refineries and Stratis Andreadis v. Greece), Application No. 13427/87, Judgment of November 21, 1994);
- funds owed to the applicants pursuant to court decisions that are final and enforceable (“Burdov v. Russia,” Application No. 59498/00, judgment of May 7, 2002, para. 40);
- “assets” that may arise, in particular, on the basis of a claim for compensation for damage resulting from such harm (“Pressos Compania Naviera S.A. and Others v. Belgium” (Pressos Compania Naviera S.A. and Others v. Belgium) (1), Application No. 17849/91, Judgment of October 28, 1995;
- “legitimate expectations” / “reasonable expectations” to take certain actions in accordance with a permit issued by state authorities (for example, the legitimate expectation of being able to carry out the planned development of the territory, given the permit for industrial land development in effect at that time (Pine Valley Developments Ltd. and Others v. Ireland, Application No. 12742/87, Judgment of October 23, 1991);
- property rights, such as the right, acquired by will, to receive rent for the use of a plot of land (Decision on the admissibility of Application No. 10741/84 S. v. the United Kingdom dated December 13, 1984);
private property interests recognized under national law (Beyeler v. Italy, judgment [GC] of January 5, 2000, application No. 33202/96);
- company shares (decision on the admissibility of applications Nos. 8588/79 and 8589/79, Lars Bramelid and Anne-Marie Malmström v. Sweden, dated October 12, 1982; “Sovtransavto Holding v. Ukraine,” Application No. 48553/99, Judgment of July 25, 2002;
- patents;
- “goodwill”—an enterprise’s accumulated intangible assets, including its name, reputation, business connections (including its clientele), trademarks, and so on; ownership of the “firm” (Van Marle and Others v. the Netherlands, Applications Nos. 8543/79, 8674/79, 8675/79, and 8685/79, judgment of June 3, 1986;
- other “property” that “has economic value,” in particular, permits or licenses necessary for conducting business activities (the case of “Tre Traktörer Aktiebolag v. Sweden” (Tre Traktörer Aktiebolag v. Sweden), judgment of July 7, 1989, Series A, No. 159).

Regarding the structure of Article 1 of the First Protocol

Article 1 of the First Protocol has its own structure: “…this article contains three separate provisions.  The first provision, which is of a general nature, enshrines the principle of peaceful enjoyment of property; the second provision concerns cases of deprivation of property and subjects such deprivation to certain conditions—it is contained in the second sentence of paragraph 1.  The third provision recognizes that States have the right, in particular, to regulate the use of property in accordance with the public interest by enacting laws  which they deem necessary to achieve that objective; this provision is contained in paragraph 2. Before determining whether the first provision has been complied with,  the Court must determine the applicability of the other two provisions in this case.” (Judgment in *Sporrong and Lönnrot v. Sweden* of September 23, 1982)

That is, Article 1 of the First Protocol guarantees an individual the peaceful enjoyment of his or her property; however, this right may be restricted by the state under certain conditions prescribed by law and only in the public interest.

Regarding the requirements under which interference with an individual’s right to property (the right to peaceful enjoyment of possessions) is lawful

In its judgment in “Shchokin v. Ukraine” dated October 14, 2010, the Court noted that deprivation of property is permissible only if certain requirements are met.  The Court states in its judgment that the first and most important requirement of Article 1 of Protocol No. 1 to the Convention is that any interference by public authorities with the peaceful enjoyment of property must be lawful. Thus, the second sentence of paragraph 1 provides that deprivation of property is permissible only “under conditions provided by law,” while paragraph 2 recognizes that States have the right to regulate the use of property by enacting “laws.”  When referring to “law,” Article 1 of the First Protocol to the Convention draws on the same concept found in other provisions of the Convention. This concept requires, first and foremost, that such measures have a basis in national law. It also refers to the quality of such a law, requiring that it be accessible to interested parties, clear, and predictable in its application.

In turn, the Court notes that the requirement of legality,  which flows from the Convention, entails the requirement to comply with the relevant provisions of national law and the principle of the rule of law (judgment in the case of “Seryavin and Others v. Ukraine” of February 10, 2010).

Regarding the State’s observance of a “fair balance” when interfering with the right to peaceful enjoyment of property

Furthermore, the Court notes that state interference with an individual’s right to peaceful enjoyment of his or her property must be justified, and it is justified if it is carried out to satisfy a “public interest” and in accordance with a “fair balance.”

In its judgment in “East/West Alliance Limited v. Ukraine” (Application No. 19336/04) of January 23, 2014, the Court stated: “…any interference by a public authority with the right to peaceful enjoyment of property must strike a ‘fair balance’ between the general interest of society and the requirements of protecting the fundamental rights of the individual concerned. The need to strike such a balance is reflected, in general, in the structure of Article 1 of Protocol No. 1. The required balance cannot be achieved if an individual and excessive burden is placed on the person concerned…”

In the case of “Immobiliare Saffi v. Italy” of July 28, 1999, the Court stated that the First Protocol must ensure a “fair balance” between the requirements of the general interest and the requirements of the protection of the fundamental rights and freedoms of the individual.

In the judgment in *Stretch v. the United Kingdom* of June 24, 2003, the Court noted that, in accordance with its established case law, any interference must ensure a “fair balance” must be struck between the need to safeguard the general interests of society and the need to protect the fundamental rights of the individual concerned. The requirement to ensure such a balance is reflected throughout the structure of Article 1 of the First Protocol.

To comply with the general rule set forth in the first sentence of Article 1(1) of Protocol No. 1 to the Convention, such interference must strike a “fair balance” between the needs of the general interest of society and the requirements of protecting the rights of the individual. Consequently, there must be an appropriate proportional relationship between the means employed and the aims pursued.

However, what criteria must state interference with the right to peaceful enjoyment of property meet in order to maintain a “fair balance”?

In its judgment in *The Former King of Greece and Others v. Greece* of November 23, 2000, the Court found a violation of the “fair balance” because the law, among other things, did not provide for any compensation for the seized property, and the applicants had no means of defending their rights. Thus, it can be concluded that in the absence of reasonable compensation to an individual for state interference with the right to peaceful enjoyment of one’s property, the “fair balance” is violated, constituting a breach of Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Interference to serve the “public interest” may be considered in both civil and criminal contexts.

In the civil context, interference may occur to enforce claims in civil or commercial proceedings, or to reduce public debt (Fabian v. Hungary, December 15, 2015). In the criminal context, interference with an individual’s right to peaceful possession of property takes the form of seizure and attachment of property as physical evidence in criminal proceedings to ensure the proper adjudication of a criminal case (the “East/West Alliance Limited v. Ukraine” judgment of January 23, 2014), seizure and attachment to secure a civil claim (the victim’s civil claims) in criminal proceedings (the case of “Borjonov v. the Russian Federation” dated January 22, 2009).

The interference must not cause significant harm to the owner of the property. To this end, the state must strike a certain balance when interfering with an individual’s right to peaceful enjoyment of property and provide appropriate compensation, since the individual begins to suffer certain losses in the event of such interference.  To this end, the interference must be carried out with reasonable proportionality and justified proportionality.

In the absence of a reasonable relationship and justified proportionality between the purpose of the state’s interference with an individual’s right to peaceful possession of property and the losses incurred by the individual due to the inability to possess their property, as well as in the absence of compensation for the interference and lawful grounds for such interference, there is a gross violation of the individual’s right to peaceful enjoyment of property.

Thus, Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms protects an individual’s right to property from arbitrary state interference with that right. However, the ECHR recognizes certain cases where interference with an individual’s rights is permissible to satisfy the “public interest”; nevertheless, such interference must not exceed a certain balance between the interests of society or the state and the interests of the individual. To this end, the state must maintain a certain balance and act only under the conditions or on the grounds provided for in the state’s national legislation; otherwise, there will be a violation of Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms.