Right to

Property is the highest right that any person can have to a thing it is also a social-political principle by which individuals may not be prohibited or prevented by anyone from acquiring, holding and trading (with willing parties) valued items not already owned by others. In the understanding of western European constitutions, long before the enactment of any international human rights instrument, the Right to Property safeguards individual freedom by limiting interventions by the State as both a precondition for and consequence of democracy and market economy.

It is mentioned in several human rights instruments. It is contained in Article 17 of the Universal Declaration of Human Rights, but was not included in the Human Rights Covenants. In regional instruments where the legal and social traditions of geographical areas are more similar it has been possible to include the right to property, thus in Europe it is in Article 1 of Protocol No 1 of the European Convention on Human Rights, in the Americas in Article 21 of the American Convention on Human Rights and in Africa in the AfCHRR (less detailed- right to property guaranteed and can be encroached. Art. 21 noteworthy since it deals with the right to compensation). Also in instruments of a specific nature: Intellectual property rights protected in a number of conventions adopted by the World Intellectual Property Organisation. ILO Conventions particularly the Convention concerning the protection of wages.

It is a negative right as for non-interference rather than requiring positive active measures by states to ensure that everyone in fact enjoys the right to property. The negative aspect of the right is emphasised by the spelling out of the conditions under which it is permitted to interfere with one's property. It seems therefore to be a civil liberty rather than there being a social element unless it is given a broader approach, placing positive state obligations in relation to the right.

The content is ultimately a question for the supervisory organ as there is no definition. Art. 21 AmCHR distinguishes between deprivation and control and one reason for this is due to the compensation. Article 1 of Protocol No 1 to the European Convention on Human Rights (our main focus here), protects a person's peaceful enjoyment of his or her possessions. This embraces the right to own, possess, use, lend or dispose of property without interference by the State. This guarantee only protects existing property rights and does not give a person a right to property which they do not already own. Therefore a homeless person cannot claim a right to receive a home. Nor does the guarantee require the State to take measures to ensure that all privately owned property is protected from any reduction in value. It is important to appreciate that Article 1, Protocol 1 is a qualified right. This means that it is lawful for the State to interfere with a person's possessions in certain circumstances. It is important to bear in mind that corporate bodies, as well as natural persons, may invoke Article 1 of the Protocol.

When considering whether there has been a violation of the right to property guaranteed by Article 1 of Protocol No. 1 you should ask yourself the following questions:

(i) Is there a property right, or possession, within the scope of Article 1?
(ii) Has there been an interference with that possession?
(iii) Under which of the three rules of Article 1 does the interference fall to be considered?
(iv) Does the interference serve a legitimate objective in the public or general interest?
(v) Is the interference proportionate? That is, does it strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights?
(vi) Does the interference comply with the principle of legal certainty, or legality?

This survey will help you answering to these questions for your particular case. However, in any event, an interference with your possessions will be incompatible with Article 1 of Protocol No. 1 if the answer to any one of questions (4) to (6) is "no".