1.Case law Survey:

Ilic v. Croatia, App. no. 00042389/98, Judgment 19 September 2000. (Involving a claim that the Government of Croatia violated Article 1 of Protocol No. 1 by not allowing Petitioner, a citizen of Yugoslavia, to reside in Croatia where she owned a house. The Court found the claim to be inadmissible.)

Brumarescu v. Romania, App. no. 00028342/95, Judgment 28 October 1999. (Involving housing restitution with respect to a house expropriated by the Government of Romania in 1950. The Court held that there had been a violation of Article 1 of Protocol No. 1.)

Kopecky v. Slovakia, App. no. 00044912/98, Judgment 28 October 1999. (Involving claim for property restitution and violations of Article 6(1) of the Convention, guaranteeing the right to a fair trial, and Article 1 of Protocol No. 1.)
Iatridis v. Greece, App. no. 00031107/96, Judgment 25 March 1999. (Involving the expropriation of land by the Government of Greece in 1966 and the eviction of its occupant in 1989. The Court held that there had been a violation of Article 1 of Protocol No. 1.)

Larkos v. Cyprus, App. no. 00029515/95, Judgment 18 February 1999. (Involving an attempt by the Government of Cyprus to evict the Petitioner in 1987. The Court held that there had been a violation of Article 8 of the Convention in conjunction with Article 14, which prohibits discrimination.)

Mentes & Others v. Turkey, App. no. 00023186/94, Judgment 28 November 1997. (Involving the destruction of housing by the Government of Turkey. The Court held that there had been a violation of Article 8 of the Convention and ordered Turkey to pay compensation to the Petitioners.)

Akkus v. Turkey, App. no. 00019263/92, Judgment 24 June 1997. (Involving the expropriation of land and mass evictions by the Government of Turkey in order to construct a dam. The Court held that there had been a violation of Article 1 of Protocol No. 1 and ordered the Government of Turkey to pay compensation.)

Loizidou v. Turkey, App. no. 00015318/89, Judgment 18 December 1996. (Involving the occupation of land and housing by the Government of Turkey in northern Cyprus. The Court held that there had been no violation of Article 8 of the Convention but that there had been a violation of Article 1 of Protocol No. 1 and ordered the Government of Turkey to pay compensation.)

Prötsch v. Austria, App. no. 00015508/89, Judgment 22 October 1996. (Involving a claim of unjust expropriation of land. The Court held that there had been no violation of Article 1 of Protocol No. 1.)

June Buckley v. United Kingdom, App. no. 00020348/92, Judgment 25 September 1996. (Involving a Roma British citizen who lived in a caravan parked on land she owns. Petitioner was denied a permit to establish the caravan on her land and ordered to move. The European Commission on Human Rights found a violation of Article 8 of the Convention but on appeal the Court held that there had been no such violation.)

Akdivar and Others v. Turkey, App. no. 00021893/93, Judgment 16 September 1996. (Involving large-scale evictions, forced relocation and demolition of villages by the Government of Turkey. The Court held that there had been a violation of both Article 8 of the Convention and Article 1 of Protocol No. 1 and ordered the Government of Turkey to pay compensation.)

Zubani v. Italy, App. no. 00014025/88, Judgment 7 August 1996. (Involving the taking of a farm and eviction of its occupants by a municipal government in order that the land could be used for the construction of low-cost and social housing. The Court held that there had been a violation of Article 1 of Protocol No. 1 and ordered the Government of Italy to pay compensation.)

Phocas v. France, App. no. 00017869/91, Judgment 23 April 1996. (Involving the expropriation of land for the improvement of a public road. The Court held that there had not been a violation of Article 1 of Protocol No. 1.)

Spadea and Sclabrino v. Italy, App. no. 00012868/87, Judgment 28 September 1995. (Involved a Petitioners'/Landlords' claims that the Government of Italy unjustly interfered with their property rights through the use of statutory extensions of leases as a means of postponing or suspending evictions. The Court held that there had not been a violation of Article 1 of Protocol No. 1.)

López Ostra v. Spain, App. no. 00016798/90, 9 December 1994. (Involving a petition alleging interference by a public authority with the right to respect the home due to a municipal government's failure to regulate a polluting industry which eventually impacted the health and safety of those living nearby. The Court held that there had been a violation of Article 8 of the Convention and awarded compensation.)

Case of the Holy Monasteries v. Greece, App. nos. 00013092/87 and 00013984/88, Judgment 9 December 1994. (Involving the expropriation of church land by the Government of Greece for distribution to destitute farmers. The Court held that there had not been a violation of Article 1 of Protocol No. 1.)

Papamichalopoulos and Others v. Greece, App. no. 00014556/89, Judgment 24 June 1993. (Involving the expropriation of agricultural land by the Government of Greece for construction of a Naval base. The Court held that there was a violation of Article 1 of Protocol No. 1 and ordered restitution of the land or payment of compensation.)

Powell and Rayner v. United Kingdom, App. no. 00009310/81, Judgment 24 January 1990. (Involving a nuisance claim by Petitioners due to the noise associated with Heathrow Airport. The European Commission of Human Rights found a violation of Article 8 of the Convention and Article 13 of the Convention, requiring an effective remedy for a violation of the Convention. The Petitioners alleged that the United Kingdom violated Article 13 with respect to other claims, including Article 1 of Protocol No. 1. The Court held that there was no violation of Article 13 with respect to other claims.)

Håkansson and Sturesson v. Sweden, App. no. 00011855/85, Judgment 21 February 1990. (Regarding the expropriation of farmland bought at auction. The Court held that there was a violation of Article 6(1) of the Convention which guarantees the right to a fair trial.)

Mellacher and Others v. Austria, App. nos. 00010522/83, 00011011/84, and 00011070/84, Judgment 19 December 1989. (Involving a challenge to a Rent Act which reduced the amount of rent due on Petitioner's property. The Court held that there had not been a violation of Article 1 of Protocol No. 1.)

Allan Jacobsson v. Sweden (No. 1), App. no. 00010842/84, Judgment 25 October 1989. (The Court held that there was a violation of Article 6(1) of the Convention, which guarantees the right to a fair trial, because the Petitioner lacked access to the courts in order to challenge regulations affecting the use of this property.)

Inze v. Austria, App. no. 00008695/79, Judgment 25 September 1987. (Involving inheritance laws which discriminated with respect to out-of-wedlock births. The Court held that there had been a violation of Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention which prohibits discrimination.)

Gillow v. United Kingdom, App. no. 00009063/80, Judgment 24 November 1986. (Involving a challenge to legislation requiring a license to reside in housing owned by the Petitioner in the town of Guernsey. The Court held that there was a violation of Article 8 of the Convention.)

James and Others v. United Kingdom, App. no. 00008793/79, Judgment 1984. (Involving a challenge to the Leasehold Reform Act of 1967 which allowed long-term tenants to acquire a freehold estate. The Court held that there was no violation of Article 1 of Protocol No. 1.)

Sporrong and Lönnroth v. Sweden, App. nos. 00007151/75 and 00007172/75, Judgment 29 June 1982. (Involving long-term expropriation of property permits, for 23 and 8 years respectively, and the prohibition of construction on the properties in question. The Court held that there had been a violation of Article 1 of Protocol No. 1 due to the long duration in which the property was under threat of expropriation, and therefore construction by the owners was prohibited, even though the expropriation did not take place. The Court adjusted the amount of compensation to be paid to the Petitioners.)

Cyprus v. Turkey, App. no. 00025781/94, Judgment 10 May 2001. (Regarding Greek Cypriots displaced from northern Cyprus. The Court held that there are continuing violations by the Government of Turkey of Article 8 of the Convention and Article 1 of Protocol No. 1.)

2.Summaries:

Sporrong and Lönnroth v. Sweden, judgment of 23 Sept. 1982, Series A, No. 52; (1983) 5 EHRR 35.
full case here

The case concerned some very valuable properties (buildings and land) in central Stockholm in Sweden. The County Administrative Board decided that the properties were needed for development, and so imposed two different kinds of measures: expropriation permits (which meant that the property might in the future be expropriated) and prohibitions on construction (which prevented any construction of any kind). The expropriation permits and prohibitions on construction on the affected land had hung over them for many years without being implemented. One of the properties was subject to an expropriation permit for a total of 23 years and to a prohibition on construction for 25 years. Another property was subject to an expropriation permit for 8 years and to a prohibition on construction for 12 years. During the time when these measures were in place, it obviously became much more difficult to sell the properties. The measures were eventually lifted due to a change in planning policy. The owners of the properties complained to the European Court of Human Rights under Article 1 of Protocol No. 1. They had received no compensation for the time when their properties were affected by the relevant measures.

The first question for the Court was whether there was any interference with property at all, within the meaning of Article 1. The Swedish Government argued that the expropriation permits and prohibitions on construction were simply an intrinsic part of town planning, and did not impair the right to peaceful enjoyment of possessions at all. But the Court was quick to reject this argument. It noted that although legally the owners' title to their property (i.e. ownership) remained intact, in practice the possibility of exercising the right to property was significantly reduced. The Court observed that, by virtue of the expropriation permits, the applicants' right to property became "precarious and defeasible". The Court had no difficulty in viewing the expropriation permits and prohibitions on construction as `affecting the very substance of ownership' because of the limitations they placed on the exercise of the rights of an owner. There was an interference with the applicants' right of property; the Court went on to determine whether the interference constituted a violation of Article 1. It then set out its analysis of Article 1 as comprising three rules:

That Article [Article 1 of Protocol No. 1] comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph. (para. 61).

The Court began by considering whether the applicants could be said to have been deprived of their possessions (second rule), which would have brought the second sentence of the first paragraph into play. All the effects complained of fell well short of complaints of deprivation. The Court held that there was no expropriation, or deprivation of property. The applicants were at all times entitled, as a matter of law, to use, sell, donate and otherwise deal with the properties. Although it had become more difficult to sell the properties because of the measures in question, it was still possible for the applicants to do so. Therefore, the second sentence of the first paragraph (i.e. the second rule) did not apply.

Since there was no deprivation, there could be no application of the second sentence of the first paragraph. The Court moved on to consider the applicability of the second paragraph (i.e. the third rule). The Court held that this applied to the prohibitions on construction, which involved the control of use of the property. However, the Court concluded that the expropriation permits were not intended to limit or control the use of the property, they had to be considered under the first sentence of the first paragraph (i.e. the first rule), because they were not deprivations of property, nor were they intended to control the use of property. It held:

The fact that the permits fell within the ambit neither of the second sentence of the first paragraph nor of the second paragraph does not mean that the interference with the said right violated the rule contained in the first sentence of the first paragraph. For the purposes of the latter provision, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. . . . The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1. Ibid., para. 69 of judgment. See also Wiesinger v. Austria, judgment of 30 Oct. 1991, Series A, No. 213; (1993) 16 EHRR 258, and Holy Monasteries v. Greece, Judgment of 9 Dec. 1994, Series A, No. 301-A.

The Court also made the following important statement of principle concerning the justification of an interference:

…the Court must determine whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individual's fundamental rights… The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1 [of Protocol No. 1]. (para. 69) (emphasis added)

Applying this test, the Court found that the fair balance had been upset in that case. In another significant statement of principle, quoted again and again in its later judgments, the Court stated:

Being combined in this way, the two series of measures created a situation which upset the fair balance which should be struck between the protection of the right to property and the requirement of the general interest: the Sporrong Estate and Mrs Lönnroth bore an individual and excessive burden which could have been rendered legitimate only if they had had the possibility of seeking a reduction of the time-limits or of claiming compensation. Yet at the relevant time Swedish law excluded the possibilities and it still excludes the second of them. (para. 73) (emphasis added)

So it is necessary to consider whether any interference with property strikes a fair balance between the protection of the right to property and the requirement of the general interest. Such a fair balance will not have been struck where the individual property owner is made to bear "an individual and excessive burden". (para. 73).

Bramelid and Malmström v. Sweden (1982), Applications Nos. 8588/79 and 8589/79.
full case here

The case concerned two private individuals who owned shares in a large well-known department store in Stockholm, Sweden. In 1977 a new Company Act was passed, which had the effect that any company which owned more than 90% of the shares and voting rights in another company was entitled to compel the remaining minority of shareholders to sell their shares to it, at the same price as would have been paid if it had purchased the shares through a public offer, or otherwise at a price fixed by arbitrators. The minority shareholders complained to the Commission about the application of the new law to them. They argued that they had had to surrender their shares to the majority shareholders at less than market value. (The price had been fixed by arbitrators).

The Commission first considered whether the shares amounted to "possessions" within the meaning of Article 1 of Protocol No. 1. They considered what a complex thing a share was: a certificate that promises the holder a share in the company, together with corresponding rights (especially voting rights). It also involved an indirect claim on company assets. There was no doubt in this case that the shares had economic value. The Commission therefore considered that the shares were "possessions".

On the question of which of the three rules of Article 1 applied, the Commission considered that the application of the Company Act to the shares of the minority shareholders did not fall within the second, "deprivation", rule as the applicants had argued. The Commission observed that although there was no express reference to "expropriation" in Article 1, its wording showed clearly that the second rule was intended to refer to expropriation, i.e. the action whereby the State lays hands - or authorises a third party to lay hands - on a particular piece of property for a purpose which is to serve the public interest. This interpretation was confirmed by the travaux préparatoires to Article 1. The Commission considered that the legislation complained of was something completely different. It concerned relations between private individuals. So the second sentence did not apply.

The Commission then noted that in all the States Parties to the Convention, the legislation governing private law relations between individuals includes rules which determine the effects of these legal relations with respect to property and, in some cases, compel a person to surrender a possession to another. Examples include the division of inherited property, especially agricultural, the division of matrimonial estates and in particular the seizure and sale of property in the course of execution. The Commission considered that this type of rule, which is essential in liberal society, cannot in principle be contrary to Article 1 of Protocol No. 1. But the Commission nevertheless had to make sure that, in determining the effects on property of legal relations between individuals, the law did not create such inequality that one person could be arbitrarily and unjustly deprived of property in favour of another. In the case before it, it found no such inequality.

Bramelid and Malmström v. Sweden is significant not only because it recognises that share ownership falls within the protection of Article 1 of Protocol No. 1, but also because it makes clear that this Article is capable of applying to legislation which affects legal relations between private individuals.

S v. France, 17 May 1990, (1990) App. 13728/88, 65 DR 250
full case here

The applicants complained that the construction of a nuclear power station on the banks of the Loire opposite their eighteenth century house violated Article 1.. . The complaint was based both on the destruction of the rural setting of their home and the noise and industrial style lighting at the site. The Commission decided that Article I does not `guarantee the right to enjoy ... possessions in a pleasant environment', Ibid., 261 but that noise nuisance of particular severity in both intensity and frequency may seriously affect the value of the property and so constitute an interference with possessions. As in App. 9310/81, Baggs v. United Kingdom 16 Oct. 1985, (1985) 44 DR 13, and see for friendly settlement, 8 July 1987, (1987) 52 DR 29.

But applying the fair balance test to the facts of the case, the Commission decided that the application was manifestly ill-founded.

X v. United Kingdom, App. 4288/69, 17 Mar. 1970, (1970)
full case here

The applicant complained that she did not receive a widow's pension to which she claimed she was entitled by virtue of her own and her late husband's contributions. The Commission recognized that a question might arise under Article 1 if contributions made many years before to a compulsory contributory pensions scheme, which had subsequently been replaced by a comprehensive National Insurance system, could be regarded as creating a vested interest in a pension which might be described as `possessions' within the meaning of Article 1.

The Commission found, however, after examining the legislation in force at the time, that the applicant had not acquired any such vested interest. A widow's pension was payable under that legislation only in respect of her late husband's contributions; and at the relevant period the applicant had not been married.

The Commission also left open the question whether even contributions to a general national insurance system might give rise to acquired rights capable of coming within Article 1. The better view probably is that while Article 1 may protect rights arising out of compulsory contributory pension schemes, where the amount of the pension is directly related to the amount of contributions, it has no application to general social security systems where there is no direct correlation of contribution and benefit.

Pressos Compania Naviera SA v. Belgium (A332 (1995)
full case here

Here the applicants were ship owners whose ships were involved in collisions in the territorial waters of Belgium. They considered that the collisions were due to the negligence of Belgian pilots (for whom the State was responsible according to Belgian law), and brought proceedings against the State. However, after the damage had been suffered, the Belgium passed legislation (Act of 30 August 1988) to remove the right to compensation in the applicable circumstances. The ship owners complained under Article 1 of Protocol No. 1, arguing that their right to property had been violated. The State disputed that the applicants had any "possessions", and argued that they had had no recognised claims which had been determined by a judicial decision having final effect.

The European Court of Human Rights stated that although the concept of "possession" is autonomous, it was relevant to consider the position as a matter of domestic (Belgian) law. It noted that under Belgian law claims for compensation for torts came into existence as soon as damage occurred. Such a claim constituted "an asset" and therefore amounted to a "possession", within the meaning of Article 1 of Protocol No. 1. In addition, based on judicial determinations prior to the passing of the 1988 Act, the applicants could argue that they had a legitimate expectation that their claims could be determined in accordance with the general law of tort. The 1988 Act was held to amount to an interference with the right to property, as it prevented the applicants from enjoying the rights they had had before the Act.

The State also pointed to the need to protect its financial interests, the need to re-establish legal certainty in the field of tort, and the need to bring the position in Belgium into line with that in neighbouring countries, notably the Netherlands. The Court noted that under the Convention system it is for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. The notion of public interest was necessarily extensive. The State therefore had a wide margin of appreciation.

As for proportionality, the Court referred to the fair balance test, and noted that compensation terms under the relevant legislation were relevant to that question. It also made the point that the taking of property without the payment of an amount reasonably related to its value will normally be justifiable only in exceptional circumstances. In this case the 1988 Act extinguished with retrospective effect and without compensation very high claims for damages that the victims of the accidents could otherwise have pursued against the Belgian State. In some cases proceedings were already pending. The State referred to the huge potential claims that would have resulted if the Act had not been passed (3 500 million BEF). The Court concluded that this concern, and the concern to bring the law into line with neighbouring countries, would warrant prospective legislation to alter the law of tort, but these considerations could not justify legislating with retrospective effect with the aim and consequence of depriving the applicants of their claims for compensation. Such a fundamental interference was inconsistent with the fair balance, and Article 1 of Protocol No. 1 had accordingly been violated.

Stran Greek Refineries and Stratis Andreadis v. Greece, A301-B (1994)
full case here

In this case, concerning an arbitration award that had been rendered void and unenforceable by legislation, the Court decided that the interference was neither an expropriation nor a control of use, and had to be dealt with under the first sentence of Article 1.

By a contract made in 1972, Mr Andreadis contracted with the State (then under the control of a military dictatorship) for the construction of a crude oil refinery near Athens in Greece by a company owned by him ("Stran"). The cost was to be about US$ 76 million. The State ratified the contract by legislative decree, but subsequently failed to fulfil its part of the bargain. Once democracy had been restored in Greece, the State considered that the contract was contrary to the national economy and terminated it. Stran had incurred large costs before the contract was terminated. A dispute arose, and Stran brought legal proceedings against the State in Athens. The State argued that the Athens court lacked jurisdiction and that the case should go to arbitration. It proceeded to appoint an arbitration tribunal and requested it to find all the legal claims of Stran unfounded. But instead the arbitration court found in favour of Stran, ordering the payment by the State to Stran of over US$16 million. The State then applied to the court to set aside the award, on the basis that the arbitration court lacked jurisdiction. The State lost in the court of appeal. While the case was subsequently pending in the court of cassation, the State in 1987 enacted a new law, which had the effect of rendering the arbitration award in Stran's favour void and unenforceable. Stran and Mr Andreadis complained to the Strasbourg organs, inter alia, under Article 1 of Protocol No. 1 to the Convention.

Much of the case before the European Court of Human Rights was concerned with Article 6 of the Convention. In relation to Article 1 of Protocol No. 1, the State argued that no "possession" had been interfered with. They contended that an arbitration award could not be equated with the right which might be recognised by such an award. The Court observed that it had to decide whether the award had given rise to a debt in Stran's favour which was sufficiently established to be enforceable. It concluded that it had. The award was on its face final and binding. It did not require any further enforcement measure, and there was no ordinary or special appeal against it. Stran therefore had a property right which fell within the scope of Article 1 of Protocol No. 1 at the time when the annulling law was passed in 1987. The European Court of Human Rights thus held that an arbitration award was a "possession" for the purposes of Article 1 of Protocol No. 1.

The Court then went on to determine whether the requisite fair balance had been struck. The State argued that the measure in question was part of a body of measures designed to cleanse public life of the disrepute attaching to the military regime and to proclaim the power and will of the Greek people to defend the democratic institutions. The applicants' rights were said to derive from a preferential contract prejudicial to the national economy, which had helped to sustain the dictatorship. The applicants argued that it would be unjust for every legal relationship entered into with a dictatorial regime to be invalidated when the regime came to an end.

The Court did not doubt the State's power to terminate a contract which it considered prejudicial to the economic interests of the State. Indeed this was well-established in public international law: a State has sovereign power to terminate a contract concluded with private individuals, provided it pays compensation. This did not, however, extend to certain essential clauses of the contract, such as an arbitration clause. Otherwise it would be possible for a party to evade jurisdiction in a dispute in respect of which arbitration had been agreed. The Court also noted that the State had itself opted for the arbitration procedure whose consequences it then sought to evade. Therefore, by annulling the arbitration award, the legislature had upset the requisite fair balance. Accordingly, there was a violation of Article 1 of Protocol No. 1.

Pine Valley Developments Ltd v. Ireland, (A 222 (1991)
full case here

The applicant Pine Valley Developments Ltd (P V), bought a plot of land in 1978, relying on an existing grant of outline planning permission for industrial development. Subsequently, in 1982, the Irish Supreme Court held that the original grant of outline planning permission was ultra vires and a nullity ab initio, since it was contrary to the relevant legislation. The applicant claimed that the decision of the Supreme Court was contrary to his right to property guaranteed by Article 1 of Protocol No. 1.

The Court asked itself first whether the applicant ever enjoyed any right to develop the land which could be the subject of an interference under Article 1, given the ruling of the Supreme Court, which meant that as a matter of Irish law he enjoyed no such right. The Court held that he did, because when he bought the land he did so in reliance on a permission duly recorded in a public register, which he was entitled to assume was valid. The Court said that in these circumstances it would be "unduly formalistic" to hold that the decision of the Supreme Court did not constitute an interference with the applicant's property.(para. 51). Until that decision was given, the applicant had at least a legitimate expectation that he could carry out the proposed development, and this had to be regarded for the purposes of Article 1 of Protocol No. 1 as a component of the property (i.e. the land) in question.

Van Marle v. the Netherlands, (A101 (1986)
full case here

The applicants had practised as accountants for some years, when in 1972 a new statute was adopted which required them to seek registration by a Board of Admission if they wanted to continue to practise. They applied for registration and this was refused in 1977. An appeal to the Board of Appeal was unsuccessful, after the applicants had been interviewed. The Board took the view that they had provided some unsatisfactory answers and had not shown sufficient professional competence. The applicants claimed that the decision of the Board was contrary to Article 1 of Protocol No. 1 because as a result of it their income and the value of the goodwill of their accountancy practices had diminished. They argued that the decision amounted to an interference with the peaceful enjoyment of their possessions, and that they had been partially deprived of their possessions without compensation.

The State argued that the applicants had no "possessions" for the purposes of Article 1, but the Court disagreed. It held that the right they relied on "may be likened to the right of property" embodied in Article 1. By dint of their own work, the Applicants had built up a clientele; this in many respects had the nature of a private right and constituted an asset and, hence, a "possession".

Further, the refusal to register the applicants radically affected the conditions of their professional activities and the scope of those activities was reduced. Their income fell, as did the value of their clientele and, more generally, their business. Consequently, there was an interference with their right to the peaceful enjoyment of their possessions.

Iatridis v. Greece [GC], no. 31107/96, ECHR 1999-II, (25 March 1999)
full case here

Here, a Mr K.N. had inherited an estate in Greece, on which he decided to build an open air cinema (having obtained the necessary permit from the authorities). There was subsequently a dispute as to ownership of the land on which the cinema was built, and the State claimed it. Notwithstanding this, the State also claimed inheritance tax from K.N.'s heirs in respect of it (in 1976). The dispute as to ownership continued, and in 1978, K.N.'s heirs leased the cinema to the applicant, who restored it. In 1989, the authorities ordered the applicant to be evicted. The eviction order was then forcibly executed, and the cinema given to the local town council.

On the question of whether the applicant had any "possession" within the meaning of Article 1 of Protocol No. 1, the Court reiterated that the concept of "possession" in Article 1 has an autonomous meaning which was certainly not limited to the ownership of physical goods; certain other rights and interests constituting assets could also be regarded as "property rights", and thus as "possessions" for the purposes of Article 1. (para. 54). The Court made it clear that it could not determine the dispute under domestic law as to who owned the land, but noted that before the applicant was evicted he had been responsible for the operation of the cinema under a lease which was formally valid, without any interference from the authorities, as a result of which he had built up a clientele which constituted an asset.

The Court then recited the three rules of Article 1. Since the applicant held a lease of the premises, there was neither an expropriation nor an instance of control of use, but an interference within the first rule of Article 1.

The Court then noted that the order to evict the applicant from the cinema had actually been quashed by the Greek court (despite the fact that the lawfulness of the applicant's interest in the land had never been accepted). That had happened two years earlier, and yet the applicant had not had the land returned. In these circumstances, the Court took the opportunity to make an emphatic statement abut the crucial need for States to comply with the principle of legality, or legal certainty. As the Court noted, if that requirement was not satisfied, there was no need to go further and consider the legitimacy of the State's objective or the question of proportionality. The Court observed that:

The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only "subject to the conditions provided for by law" and the second paragraph recognises that the States have the right to control the use of property by enforcing "laws". Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention…and entails a duty on the part of the State or other public authority to comply with judicial orders or decisions against it…It follows that the issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights … becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary. (para. 58)

The failure to return the land to applicant was "manifestly" in breach of Greek law, and so in clear violation of Article 1 of Protocol No. 1, without looking at any other issue.

Papamichalopoulos and others v. Greece, judgment of 24 June 1993, Series A, No. 260-B; (1993) 16 EHRR 440.
full case here

The applicants were owners of a large area of valuable land in Greece. The land included a beach, and in 1963 the applicants had obtained permission from the Greek Office of Tourism to construct a hotel complex on the site. But thereafter a military dictatorship assumed control in Greece, and in August 1967 the applicants' land (including the beach) was transferred to the Navy. The applicants sought, not surprisingly, to recover the land, but failed. The Navy proceed to construct a naval base on the land and a holiday resort for officers. Despite various court actions in Greece, and some suggestions on behalf of the State that the applicants should get some other land by way of exchange, no redress at all had been made available by the early 1990s, when the applicants applied to the Commission in Strasbourg.

When the case came before the European Court of Human Rights, the Court began by noting that the interference had to be regarded as a continuing violation since 1967. The Court noted that the interference here was not for the purpose of controlling use of property, and so the third rule of Article 1 did not apply. As regards the second rule, the land was never formally expropriated, in the sense that title was not transferred. But since the Convention was intended to safeguard rights that were "practical and effective", it had to be ascertained whether the situation complained of nevertheless amounted to a de facto expropriation.

The Court noted that the Navy Fund actually physically took the applicants' property from them and built on the land. From that date, the applicants were unable to make use of their property or to sell, bequeath, mortgage or make a gift of it. The Court held that the loss of all ability to dispose of the land, taken together with the failure to remedy the situation, entailed sufficiently serious consequences for the applicants' land de facto to have been expropriated.

Comment: Although the saga began during the military dictatorship, governments thereafter sought to maintain the advantage accruing from the occupying the land concerned and there could be no objection to treating this as a continuing situation covered by Greece's relatively recent re-ratification of the ECHR and declaration under Art 25. The attempt to block the complaint on technicalities at a late stage was rightly resisted and the finding about the effect of the occupation was irresistible. It is perhaps surprising that, given the delays besetting attempts to remedy the situation, it was not also argued that there had also been a violation of Art 6(1).

Brumarescu v. Romania, No. 28342/95 (October 28, 1999)
full case here

In this case, the applicant's parents had built a house in Bucharest in 1939. In 1950, the house was nationalised pursuant to a legislation decree without payment of compensation. In 1974, the house was sold by the State to two brothers, who had previously lived in a flat in the house as tenants. In 1993, the applicant brought an action in the Romanian court to establish that the nationalisation was null and void, because his parents fell within an exemption provided for in the decree, as they were unemployed. The court at first instance agreed, and ordered the administrative authorities to transfer the house to the applicant. The applicant went to live in the house, and paid land tax in respect of it. But the Procurator-General, acting on behalf of the brothers to whom the property had previously been transferred, then brought an application on their behalf in the Supreme Court to have the judgment of 1993 quashed. The Supreme Court quashed the judgment of the first instance court on the ground that the house had passed into State ownership under a legislative instrument and that the manner in which such an instrument was applied could not be reviewed by the courts, that being a matter for the executive or the legislature. Thereupon, the tax authorities informed the applicant that the house would be reclassified as State property with effect from 2 April 1996.

When the case came before the European Court of Human Rights, it held, first, that the applicant had a possession in the form of the judgment of the first instance court that the property had never been lawfully nationalised. It then found that the decision of the Supreme Court had been an interference with the right recognised by that judgment. The Court then reiterated that, in determining whether there has been a deprivation of possessions within the second rule, it is necessary to look behind the appearances and investigate the realities of the situation complained of, and held that he had, i.e. the second rule applied. The Court found that the interference fell under the second sentence of the first paragraph of Article 1 of Protocol No. 1. The effect of the Supreme Court of Justice's judgment had been to deprive the applicant of the rights of ownership of the house vested in him by the final judgment in his favour at first instance.

A taking of property within this second rule could be justified only if it was shown, inter alia, to be "in the public interest" and "subject to the conditions provided for by law". Moreover, any interference with the property had also to satisfy the requirement of proportionality. The Court observed that no justification had been offered for the situation brought about by the judgment of the Supreme Court of Justice. In particular no plausible argument had been advanced to show that the deprivation of property had been justified "in the public interest". Further, as at the date of the judgment the applicant had been deprived of ownership of the property for more than four years without the payment of compensation reflecting its true value and his efforts to recover ownership had proved unsuccessful. The Court found that in those circumstances, even assuming that the taking could be shown to serve some public interest, the requisite fair balance had been upset since the applicant had borne and continued to bear an individual and excessive burden. There had accordingly been, and continued to be, a violation of Article 1 of Protocol No. 1 to the Convention.

Tre Traktörer Aktiebolag v. Sweden judgment of 7 July 1989,
Series A no. 159.
full case here

The applicant was a Swedish limited company. It took over the management of a restaurant called "Le Cardinal" (in 1980). The restaurant had previously been granted a licence to serve alcohol. Concerns arose as to the lady who was behind the applicant company, as to her tax affairs and generally as to her ability to manage the restaurant. In July 1983, the County Administrative Board decided to revoke the licence with immediate effect. The company argued that as a result, the restaurant had to be closed the very next day (although this was disputed on behalf of the State). An appeal to a further administrative authority was rejected, as was a claim addressed to the Government for compensation as a result of the withdrawal of the licence.

The applicants complained to the European Court of Human Rights under Article 6 as well as under Article 1 of Protocol No. 1 to the Convention. As to the latter, the State argued that a licence to serve alcohol could not constitute a "possession" for the purposes of Article 1. But the Court, like the Commission, considered that the "economic interests connected with" the running of the restaurant were "possessions" for these purposes. The maintenance of the licence was one of the principal conditions for the carrying on of the applicant company's business, and its withdrawal had adverse effects on the goodwill and value of the restaurant. Such withdrawal constituted an interference with the peaceful enjoyment of possessions.

The Court then recited the three rules of Article 1. It said that, severe though it might be, the interference did not fall within the ambit of the second sentence of the first paragraph. The applicant company, although it could no longer operate "Le Cardinal" as a restaurant, kept some economic interests represented by the leasing of the premises and the property assets contained therein, which it finally sold in 1984. There was therefore no deprivation of property within the second rule. The withdrawal of the licence was therefore a measure for the control of use of property, under the second paragraph of Article 1.

Mellacher v. Austria, (A169 (1989)
full case here

The Court had to consider an interference with a landlord's contractual entitlement to rent (see also S. v. the UK). The applicants jointly owned a large building in Graz in Austria comprising a number of flats leased to tenants. A system of rent control had existed in Austria since World War I. But this did not apply to houses constructed after 1917 or to certain other flats. In 1981 a new Rent Act was introduced after heated debate, to bring about overall reform. It had the effect for the applicants of vastly reducing the rents they were entitled to under existing tenancy agreements. They complained that the legislation interfered with their freedom of contract and entitlement to future rent. The existing rents had been contractually agreed under the old law.

It was not disputed that the reduction in rent made pursuant to the 1981 Act constituted an interference with the applicants' enjoyment of their rights as owners of the building. The applicants claimed that this was a de facto expropriation of their property (the building), and that they had in any event been deprived of their contractual right to receive rent. The Court held that there had been no de facto expropriation of property, as there had been no transfer of the applicants' property, nor had they been deprived of their right to use, let or sell it. Admittedly the effect of the Act was to deprive them of part of their income from the property. This amounted in the circumstances to a control of use of property within the second, control of use, rule.

As for the issue of justification, the applicants contended that the 1981 Rent Act did not serve a legitimate aim. They said it was not calculated to redress a social injustice, but to bring about a redistribution of property. They accepted that this was something which could in principle be done, but argued that there was no problem in existence which required State intervention. They referred to an economic boom which Austria had been experiencing. They put forward statistics showing that accommodation was in fact available, and they claimed that the Act did not have the support of two of the three political parties representing the majority of the population. They argued that it was a measure of a socialist government intended to satisfy a section of the electorate. So it was not a measure, they said, which was in the general interest.

The European Court of Human Rights looked at the explanatory memorandum submitted to the Austrian Parliament by the government when the legislation was introduced. This referred to the need to reduce disparities between the rents payable for equivalent flats. The Act was aimed at making accommodation more easily available at reasonable prices. The Court found that these explanations could not be characterised as manifestly unreasonable. The Act therefore had a legitimate aim in the general interest.

As for the requirement of proportionality, the Court reiterated the fair balance test. The applicants argued that the Act constituted a statutory inducement not to comply with the terms of validly concluded contracts and therefore violated the principle of freedom of contract. The Court observed, however, that in remedial social legislation, and in particular in the field of rent control, it must be open to the legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy adopted. The Court further stated that the possible existence of alternative solutions did not of itself render the contested legislation unjustified. Provided that the legislature remained within the bounds of its margin of appreciation, it was not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised some other way.

The applicants referred to the fact that the effect of the 1981 Act was to reduce their rents by as much as 80% in two cases, and 22% in another. The Commission had found that degree of interference unjustifiable. The State argued that even at a reduced level, the rents compared reasonably with rent that could be charged for other buildings. The Court found that the requisite fair balance had been struck. It took into account, inter alia, that owners were still able to pass on various expenses to tenants, such as insurance cost, and could require the tenants to pay a contribution towards maintenance works. The Act also made transitional provision which meant that landlords were allowed to recover under existing contracts a rent 50% higher than what they would be allowed to obtain under a new lease. There was, therefore, no violation of Article 1 of Protocol No. 1.

Hakancson and Sturesson v. Sweden, judgment of 21 Feb.
1990, Series A, No. 171; (1991) 13 EHRR 1.
full case here

It concerned the right to retain land purchased for 240,000 Swedish kroner at a compulsory sale by auction in order to meet debts of the owners to certain banks. In these circumstances, it was necessary under Swedish law to obtain a permit to retain the land, but the public authorities decided that the land should be used for consolidation with neighbouring properties and refused requests for the permits. The applicants had known of this risk when the property was bought, but relied on verbal assurances that the permits would be issued speedily. As a result of the consolidation proposals, a second compulsory auction of the land was held and the applicants had received 172,000 Swedish kroner less the costs of the valuation and auction.

The Court looked first at the lawfulness and purpose of the interference. This was the rationalization of agriculture, which was considered `undoubtedly' to be a legitimate public interest, which was provided by law. The Court noted that there was a further requirement that `there be a reasonable relationship of proportionality between the means employed and the aim sought to be realised'." The applicants argued that the difference between the price paid by them and the sum received following the second compulsory auction violated the principle of proportionality. Both the Commission and the Court disagreed; there was nothing in the price differential to show that the sum the applicants received was not reasonably related to the value of the estate. There was no violation of Article 1.

Müller v. Austria (1975), Application No. 5849/72.
full case here

Mr Müller had worked as a locksmith in Austria and Luxembourg for many years, making compulsory and voluntary contributions to a State-run old-age insurance scheme. As a result of a treaty entered into between Austria and Luxembourg, part of his contributions could no longer count towards his main pension, but only towards a supplementary pension. This meant that when Mr Müller came to retire in 1970, he did not get as much by way of pension benefit as he had expected.

He argued that the application of the treaty to him involved a violation of his right to property under Article 1 of Protocol No. 1. When considering his argument, the Commission made it clear that the right to an old-age pension is not included as such among the Convention rights. But it decided that the making of compulsory contributions to a pension fund might create a property right in a portion of such a fund and that such a right might be affected by the way the fund was distributed. The Commission was also prepared to assume, without deciding, that voluntary pension contributions could equally give rise to a right safeguarded by Article 1 of Protocol No. 1.

Ultimately, the Commission rejected Mr Müller's claim, on the basis that although Article 1 might guarantee a person the right to derive benefit, it cannot be interpreted as entitling that person to a particular amount. But the decision is important in that it shows that pension rights based on contributions to a fund may fall within the protection of Article 1. This does not of course mean that Article 1 of Protocol No. 1 guarantees entitlement to pension or social security benefits where there is no basis for such benefits as a matter of domestic law.

Lithgow and others v. United Kingdom, Judgment of 8 July 1986, Series A, No. 102; (1986) 8 EHRR 329.
full case here

The applicants were shipbuilding and aircraft building companies, whose interests were nationalised. They did not contest that the State had a legitimate objective for the taking, but argued that the compensation paid was grossly inadequate. The British Government had decided on a system of compensation whereby the applicants' shares (which were nationalised) were valued by reference to their value some three years before the date of transfer of the shares. The Government's case was that this was done in order to avoid a value which was artificially affected by the knowledge that there would be a nationalisation. The applicants argued that the relevant date should be closer to the date of transfer, because the value of the shares had actually gone up. The applicants pointed to the fact that in general international law, in similar cases, it is the date of taking, or transfer, which is taken as the date of assessment.

The Court agreed with the Commission that: the taking of property without an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1. Article 1 does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of "public interest", such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. (para. 121).

Significantly, the Court also stated that the standard of compensation may vary depending on the nature of the property and the circumstances of the taking. The standard of compensation required in a nationalisation case may be different from that required in regard to other takings of property, e.g. the compulsory acquisition of land for public purposes (para. 121).

The Court held (rejecting the applicants' argument) that the "margin of appreciation" applied not only to the question of whether the nationalisation was in the public interest, but also to the choice of compensation terms. The Court observed that:

…the Court's power of review in the present case is limited to ascertaining whether the decision regarding compensation fell outside the United Kingdom's wide margin of appreciation; it will respect the legislature's judgment in this connection unless that judgment was manifestly without reasonable foundation. (para. 122)

The applicants had also relied on the require- ment in the second sentence of Article 1 that a deprivation of property be subject to the conditions provided for "by the general principles of international law." They had argued that this requirement meant that the compensation payable to them had to be "adequate, prompt and effective" as required by the general principles of international law. But the Court rejected this argument. It noted that under the general principles of international law themselves, this requirement only applies to non-nationals. Looking at the travaux préparatoires to Article 1, it was clear that the States intended this phrase to apply only to non-nationals.

Chassagnou and Others v. France Applications nos. 25088/94, 28331/95 and 28443/95, Judgement 29 April 1999.
full case here

In this case the applicants were landowners who, under French law, had the exclusive right to hunt on their land. This right was an aspect of the ownership of the land. But the French authorities considered that it could be beneficial to make smaller landowners get together and form an association granting mutual hunting rights to all concerned. They made it compulsory for landowners like the applicants to become members of the association and to give up their exclusive hunting rights to other members of the association to hunt on their land. The applicants (who were animal welfare activists and anti-hunting) claimed that the compulsory transfer of hunting rights was contrary to Article 1 of Protocol No. 1.

It was agreed before the Court that the third, control of use, rule applied. As to public interest, the applicants argued that the law was only for benefit of hunters, and so not in the public interest. The Court rejected that argument. It held that the French authorities were entitled to conclude that it was in the general interest to avoid unregulated hunting.

As to proportionality, the Court held that it upset the fair balance for the applicants to be compelled to transfer their hunting rights to enable others to hunt on their land when they had ethical and moral objections to hunting. In particular, the Court noted the absence of any compensation. (The Government had intended that the ability for landowners such as the applicants to hunt on land belonging to others would be sufficient compensation, but this did not assist the applicants, who did not want to hunt.) In the circumstances, the applicants' right to property as guaranteed by Article 1 of Protocol No. 1 had been violated.

The Court noted that in the present case the applicants did not wish to hunt on their land and objected to the fact that others could come onto their land to hunt. However, although opposed to hunting on ethical grounds, they were obliged to tolerate the presence of armed men and gun dogs on their land every year. This restriction on the free exercise of the right of use undoubtedly constituted an interference with the applicants' enjoyment of their rights as the owners of property. As far as the aim of that interference was concerned, the Court considered that it was undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks.

After noting that none of the options mentioned by the Government (possibility for the applicants to enclose their land, or apply for it to be designated as game reserves or nature reserves) would in practice have been capable of absolving the applicants from the statutory obligation to transfer hunting rights over their land to ACCAs, the Court expressed the view that the various forms of statutory consideration mentioned by the Government could not be considered to represent fair compensation for loss of the right of use. It was clear that it was intended in the Loi Verdeille of 1964 for each landowner subject to compulsory transfer to be compensated for deprivation of the exclusive right to hunt on his land by the concomitant right to hunt throughout those parts of the municipality's territory under ACCA control. However, that compensation was valuable only in so far as all the landowners concerned were hunters or accepted hunting. But the 1964 Act did not contemplate any measure of compensation for landowners opposed to hunting, who, by definition, did not wish to derive any advantage or profit from a right to hunt which they refused to exercise.

The Court noted that compulsory transfer of the right to hunt, which in French law was one of the attributes of the right of property, derogated from the principle laid down by Article L. 222-1 of the Countryside Code, according to which no one may hunt on land belonging to another without the owner's consent. The Court further observed that, following the adoption in 1964 of the Loi Verdeille, which had excluded from the outset the départements of Bas-Rhin, Haut-Rhin and Moselle, only 29 of the 93 départements concerned in metropolitan France had been made subject to the regime of compulsory creation of ACCAs, that ACCAs had been voluntarily set up in only 851 municipalities and that the Law applied only to small landholdings, to the exclusion of both large private estates and State land.

In conclusion, notwithstanding the legitimate aims of the Loi Verdeille when it was adopted in 1964, the Court considered that the result of the compulsory-transfer system which it laid down had been to place the applicants in a situation which upset the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others could make use of them in a way which was totally incompatible with their beliefs imposed a disproportionate burden which was not justified under the second paragraph of Article 1 of Protocol No. 1. There had therefore been a violation of that provision.

S. v. the United Kingdom (1986), Application No. 11716/85.
full case here

A woman had lived "as man and wife" for many years with another woman. The other woman was a tenant of the local authority, but the applicant had no legal right in the property or the tenancy. When her partner - the tenant - died, the applicant applied to the English court for the tenancy to vest in her, as surviving partner of the tenant. But the English court held that the law did not allow this: only the surviving spouse of a heterosexual couple that had married could claim a tenancy. Before the European Commission of Human Rights, the applicant relied primarily on Article 8, but also on Article 1 of Protocol No. 1. The Commission rejected the claim. It noted that the applicant had no contractual right, and the mere fact that she had been living in the house did not mean that she had any "possession" for the purposes of Article 1 of Protocol No. 1. Thus, according to the Commission the occupation of property without a legal right was not protected under Article 1 of Protocol No. 1.

James and others v. United Kingdom, judgment of 21 Feb. 1986, Series A, No. 98; (1986) 8 EHRR 123
full case here

The applicants in this case were trustees of the estate of the Duke of Westminster, who owned 2000 houses in a highly desirable part of London. The applicants complained that the estate had lost a very large amount of money as a result of the implementation of a statute, the Leasehold Reform Act 1967, which gave long leaseholders (tenants) the right to buy the freehold (ownership) at less than market value. The 1967 Act applied only to long leaseholds, i.e. to leases of 21 years or more. They also had to be leaseholds granted at a low rent. As a result of being forced to sell the freehold under the Act to some 80 tenants in London who exercised their right to buy, or to "enfranchise", the Duke's estate lost around £2 million, as compared to the market value.

When considering the complaint under Article 1 of Protocol No. 1, the European Court of Human Rights first referred to the "three rules" analysis in Sporrong and Lönnroth v. Sweden. The Court considered that the applicants had been deprived of their properties within the second rule (although the transfer of ownership was not to the State but to other private individuals).

On the question of whether the taking of the properties could be justified by the State, the applicants argued that the relevant legislation could not be in the public interest, because the properties were not taken for the benefit of the community generally. The applicants contended that the transfer of property from one person to another could not, as a matter of principle, be "in the public interest". The Court addressed the question of whether the public interest could be served by a compulsory transfer of ownership from one private individual to another.

The Court added that the taking of property pursuant to a policy calculated to enhance social justice within the community could properly be described as being in the public interest. In so deciding the Court recognised that it was not following the approach of the domestic law of a number of contracting States in relation to expropriation. It then made an important and oft-quoted statement of principle about the State's "margin of appreciation". This statement forms the basis, together with the dicta in Sporrong and Lönnroth v. Sweden, for any consideration of what is a justified interference with property to this day:

Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is "in the public interest". Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken… Here as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.

Furthermore, the notion of "public interest" is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may differ widely. The Court agreed with the Commission that the references to the `public interest' in the English text and `utilite publique' in the French text are capable of bearing a wide meaning which includes the `implementation of policies calculated to enhance social justice'."

The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is "in the public interest" unless that judgment is manifestly without reasonable foundation. In other words, although the Court cannot substitute its own assessment for that of the national authorities it is bound to review the contested measures under Article 1 of Protocol No. 1 and, in so doing, to make an inquiry into the facts with reference to which the national authorities acted. (para. 46) (emphasis added)

The Court went on to find that the aim of the Leasehold Reform Act 1967 - greater social justice in the sphere of housing - was a legitimate aim in the public interest.

The Court then referred to the requirement of proportionality, citing Sporrong and Lönnroth v. Sweden and the test of whether a fair balance had been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The applicants relied on the fact that other States apparently did not have similarly draconian measures. They argued that in order to be proportionate the measure had to be necessary, in the sense that there was no other alternative. But the Court rejected this submission: it was not for the Court to judge whether the Leasehold Reform Act 1967 constituted the best solution to the problem.

The Court also considered the question of compensation and agreed with the Commission that Article 1, although it is silent on the point, generally requires compensation for a taking of property. The Court noted that in the legal systems of contracting States, the taking of property without any compensation would be justifiable only in exceptional circumstances: otherwise the right to property would be largely "illusory and ineffective". As to the standard of compensation, the Court said that a taking of property without an amount of compensation reasonably related to its value would normally be disproportionate. But Article 1 does not guarantee a right to full compensation in all circumstances:

Legitimate objectives of 'public interest', such as are pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value.

The Court went on to find that the requisite fair balance had been struck in this case, although the estate of the Duke of Westminster did not receive the full market value on the transfer of ownership to the tenants. The Court noted that the tenant paid approximately the site value, but nothing for the buildings on the site. This clearly favoured the tenants, but because of the money he (or his predecessors) had paid for the lease (a capital sum) and money spent over the years on repairs, maintenance and improvements, the tenant or his predecessor in title had in effect already paid for the property. Accordingly, there had been no violation of Article 1 of Protocol No. 1.

Scollo v. Italy judgment of 28 September 1995, Series A no. 315-C, p. 56
full case here

In this case, the applicant bought a residential flat in Rome in June 1982 that was occupied by a tenant. The applicant sought eviction of the tenant in March 1983, on the grounds, inter alia, that he (the applicant) was 71 per cent disabled, unemployed, diabetic and needed the flat, and that the tenant had ceased to pay his rent. The applicant was first granted an eviction order by the magistrate in April 1983. However, in accordance with the Italian Government policy of postponing, suspending or staggering the enforcement of eviction orders against residential tenants, the eviction order was suspended on four separate occasions pursuant to a Legislative
Decree (adopted because of a housing shortage) which suspended evictions until 30 June 1985. Eventually, the tenant left the flat of his own accord in January 1995, eleven years and ten months after the applicant first began proceedings for his eviction.

The applicant complained of a violation of his right to property. When the issue came before the European Court of Human Rights, it first considered the application of the three rules of article 1. It noted that there was neither a transfer of property nor, contrary to the applicant's submissions, a de facto expropriation. At all times the applicant retained the possibility of alienating the property, and he received rent - in full until October 1987, and in part between November 1987 and February 1990. As the implementation of the measures in question meant that the tenant continued to occupy the flat, they undoubtedly amounted to control of the use of possessions. Accordingly, the second paragraph of Article 1 of Protocol No. 1 applied.

The Court referred to the fact that the second paragraph of Article 1 reserves to the States the right to enact such laws as they deem necessary to control the use of property in accordance with the general interest. Such laws, it noted, are especially common in the field of housing, which in our modern societies is a central concern of social and economic policies. In order to implement such policies, the legislature must have a wide margin of appreciation both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such measures. The Court reiterated that it will respect the legislature's judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation.

The applicant argued that the relevant legislative measures had no legitimate aim; in substance, the fact that the State had no effective housing policy had deprived him of his right to dispose of his flat, since the tenant's interests alone had been protected. The Government was not entitled, he argued, to justify the emergency legislation by invoking the general interest.

The Court observed, however, that the legislative provisions suspending evictions during the period 1984 to 1988 were prompted by the need to deal with the large number of leases that expired in 1982 and 1983 and by the concern to enable the tenants affected to find acceptable new homes or obtain subsidised housing. To have enforced all the evictions simultaneously would undoubtedly, said the Court, have led to considerable social tension and would have jeopardised public order. Therefore, the legislative provisions had a legitimate aim in the general interest, as required by Article 1 of Protocol No. 1.

Going on to deal with the requirement of proportionality, the Court observed that any interference with property must strike a fair balance, and that there had to be a reasonable relationship of proportionality between the means employed and the aim pursued.

The applicant argued that the interference in question was disproportionate. He emphasised that he was a small property owner who wanted to occupy his own flat in order to live there with his family. He referred to the fact that he had been obliged to incur debts to buy another flat. The State for its part invoked the exceptional housing shortage in Italy at that time.

The Court noted that housing shortages are an almost universal problem of modern society. In order to see whether the measures were proportionate to the aims sought to be achieved - protecting tenants on low incomes and avoiding the risk of any prejudice to public order - the Court had to ascertain whether the applicant's tenant was treated in such a way that the requisite fair balance was maintained. The Court noted that the applicant had made it clear to the authorities that he needed the flat, that he had no job and that he was disabled. The authorities had taken no action at all in response. The applicant had not been able to recover his property until the tenant left of his own accord, although he had satisfied the conditions for enforcement of eviction during the period when this procedure was suspended. The Court also noted that the applicant had had to buy another flat and to bring an action to recover rent. All in all, the restrictions on the applicant's use of his flat amounted to a breach of the requirement of proportionality and to a violation of Article 1 of Protocol No. 1.

So Scollo v. Italy is an example of it being argued, unsuccessfully, that the measures in question did not serve a legitimate objective in the public interest. But the applicant did succeed on his argument that even if there was a legitimate objective, the means chosen to serve that objective were disproportionate to that aim.

Comment: The Court did not accept that the non-enforcement of the eviction orders amounted to a de facto expropriation, which would almost certainly required compensation to be acceptable. Instead they were categorised as a control over use which had to be judged as to whether it achieved a fair balance between the applicant's interests and those of the community, which might be achieved according to established case law without there being any need to pay compensation. The prospect of large-scale homelessness understandably influenced the Court in reaching the conclusion that control over evictions did have a legitimate social aim. However, when it came to judging the proportionality of the interference it concentrated only on the effect that this had on the applicant given his personal circumstances and not the appropriateness of this as a measure to deal with the problem. He was successful because his case fell within the statutory conditions for enforcement and there was a complete failure to take account of his requests for assistance in bringing about the eviction, the property being recovered because the tenant left of his own accord. The Court did not question the acceptability of not enforcing eviction orders in general and did not call into question its use as part of a series of measures to tackle the housing problem. Although these were described as `emergency' measures, they had been resorted to for over 40 years and a more critical approach to their acceptability might be thought appropriate. Certainly there was no consideration as whether it would have been possible for some alternative course of action to be pursued which did not impact on private rights and there was no reference to the way what the Court described as `an almost universal problem of modern society' was being handled elsewhere.

X v. The Netherlands, App. 4130/69, 20 July 1971, (1972) 38 CD 9
full case here

The case concerns the pension schemes in the Netherlands. After examining the system of financing the schemes, the Commission concluded:

It is therefore clear, both from the manner in which the funds are administered and from the system of distribution adopted, that this branch of the Dutch social insurance legislation is based on the principle of solidarity which reflects the responsibility of the community as a whole to provide a minimum financial basis for its aged members and for survivors. The contributions which the younger members of the community are obliged to make are collected in a revolving fund from which the older or surviving members of the community receive their pension. The distribution of the pension funds takes into account the economic realities of the period concerned to the extent that persons benefiting from this system receive their pension in accordance with the wage index established for the period in which the pension is paid and not according to that established for the periods in which they made contributions. There is, therefore, no relationship between the contributions made and the pension received in the sense that the amounts paid by the insured person are accumulated with a view to covering the pension benefits accruing to him when reaching pensionable age. Consequently, a person does not have, at any given moment, an identifiable share in the fund claimable by him but he has an expectancy of receiving old-age or survivors pension benefits subject to the conditions envisaged by the Acts concerned .(para. 15)

Hence, the benefits accruing under the schemes did not constitute a property right which could be described as `possessions' under Article 1.

Beyeler v. Italy, Application no. 33202/96, 5 January 2000
full case here

This case concerned a painting by Van Gogh, which the applicant, a Swiss national, bought in 1977 for 600 million lire through an intermediary without disclosing his identity to the vendor. As a result, the declaration of sale which the vendor filed with the Italian Ministry of Cultural Heritage (in accordance with the requirements of Law No. 1089 of 1939) did not mention the applicant's name. In December 1983, the ministry learned that the applicant was the real purchaser of the painting. In May 1988, the applicant sold the work to an American corporation for US$8.5 million, but in November 1988 Italy exercised its right of pre-emption, on the basis of its historical and artistic interest and stating that the applicant had omitted to inform the ministry that the painting had been purchased on his behalf, and bought the painting at the 1977 sale price.

The applicant alleged a violation of article 1 of Protocol No. 1, contending, in particular, that the Italian authorities had expropriated the painting.

The Court noted a number of points pertaining to this case:

- It found that the applicant's dealings with the painting over a period of time were such that he must be regarded as having a possession within the meaning of Article 1 of Protocol No. 1. But the Court did not actually rule that he was the owner of the painting.
- The Court then considered the nature of the interference with the applicant's possession and stated that "The complexity of the factual and legal situation prevents its being classified in a precise category" (para. 106). The applicant had argued that the second rule applied, but the Court, noting that the situation envisaged in the second sentence was only a particular instance of interference with the peaceful enjoyment of property as guaranteed by the general rule in the first sentence of Article 1, decided that it should examine the situation complained of in the light of that general rule.
- the measure complained of - that is, the exercise by the Ministry of Cultural Heritage of its right of pre-emption - had undoubtedly amounted to an interference with the applicant's right to the peaceful enjoyment of his possessions;
- for an interference to be deemed compatible with article 1 of Protocol No. 1, it must be in accordance with domestic law; the Court had limited power to review compliance with domestic law in this case, especially since there was nothing to suggest that the Italian authorities had applied Law No. 1089 of 1939 in a manifestly erroneous fashion or in such a way as to produce an arbitrary outcome;
- the principle of lawfulness also presupposed that the applicable provisions of domestic law were sufficiently accessible, precise and foreseeable; in certain respects, the statute lacked clarity, particularly in that it left open the time limit for the exercise of a right of pre-emption in the event of an incomplete declaration, without indicating how such an omission could subsequently be rectified. The Court stated that that factor alone could not lead to the conclusion that the interference in question had been unforeseeable or arbitrary, but noted that the element of uncertainty in the statute and the considerable latitude it afforded the authorities were material considerations to be taken into account in determining whether its application in this case had struck a fair balance.
- The Court considered that the control by the state of the market in works of art was a legitimate aim for the purpose of protecting a country's cultural and artistic heritage. While the issue in this case did not concern the return of a work of art to its country of origin, the Court recognised that, in relation to works of art lawfully on its territory and belonging to the cultural heritage of all nations, it was legitimate for a state to take measures to facilitate wide public access to them, in the general interest of universal culture.
- The Court did not question either the state's right of pre-emption over works of art or its interest in being informed of all the details of a contract, including the identity of the end purchaser in a sale conducted through an agent, in order to decide in the full knowledge of the facts whether or not to exercise the right of pre-emption.
- The Court noted further that the government had failed to give a convincing explanation as to why the authorities had not acted in 1984 in the same manner as they had acted in 1988; taking punitive action against the applicant in 1988 on the ground that he had made an incomplete declaration - a fact of which the authorities had become aware almost five years earlier - hardly seemed justified. The Court stressed that where an issue in the general interest was at stake, it was incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency.
- The Court also noted that the Ministry of Cultural Heritage had acquired the painting in 1988 at well below its market value and the authorities had thus derived an unjust enrichment from the uncertainty that existed during the intervening period and to which they had largely contributed. Irrespective of the applicant's nationality, such enrichment was incompatible with the requirement of a "fair balance."
- The applicant stated that he had been discriminated against, in that the authorities had expressly said that his Swiss nationality made the measure all the more justified. The applicant argued that his nationality should not have been a relevant factor.

The Court decided that there had been a violation of article 1 of Protocol No. 1.

Marckx v. Belgium, judgment of 13 June 1979,
Series A, No. 31, (1979-80) 2 EHRR 330
full case here

In this case the applicant and her infant daughter complained of the fact that certain aspects of the illegitimacy laws in Belgium, including the fact that maternal affiliation could only be established by a formal act of recognition, and the existence of limitations on the mother's right to bequeath, as well as limitations on an illegitimate child's right to inherit, constituted interferences with their right to property under Article 1 of Protocol No. 1 (also read together with Article 14). (Other claims were also made, in particular under Article 8).

The European Court of Human Rights held that Article 1 of Protocol No. 1 did not apply at all to the daughter, noting that this article does no more than enshrine the right of everyone to the peaceful enjoyment of "his" possessions, that consequently it applies only to a person's existing possessions and does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions.

AGOSI v. the United Kingdom, judgment of 24 October 1986,
Series A no. 108, p. 19.
full case here

The applicant was a German company, AGOSI, in the business of metal smelting, and also dealing in gold and silver coins. One Saturday afternoon, a Mr X and Mr Y visited the company's factory in Germany and asked to make an immediate purchase of 1 500 krugerrands, which were gold coins minted in South Africa. The value of the coins was £120 000. The sale was agreed and the coins were loaded into a car with British number plates. Payment was accepted in the form of a cheque drawn on an English bank. AGOSI sought to cash the cheque, but it was dishonoured. The contract of sale for the gold coins contained a term that ownership of the coins remained with AGOSI until payment in full had been received. Meanwhile, the buyers tried to bring the coins into the United Kingdom hidden in a spare tyre in the car. But the coins were discovered and were seized by the United Kingdom customs authorities. A few months earlier, the importation of gold coins had been prohibited by the Secretary of State for Trade and Industry. The buyers of the coins, Messrs X and Y, were charged with fraudulent evasion of the prohibition on importation of gold coins (smuggling). AGOSI shortly thereafter requested the return of the coins to them, on the basis that they remained their rightful owner, as they had not been paid. The customs authorities declined to restore the coins. Mr X and Mr Y were convicted in the criminal court. Even at that stage the customs authorities refused to return the coins to AGOSI. The company unsuccessfully sued in the English court for their return.

Before the European Court of Human Rights, AGOSI complained, inter alia, of the refusal by the customs authorities to restore the coins. The company argued that it was the lawful owner of the coins and innocent of any wrongdoing, and that it had not been given a proper opportunity of putting its case before the English courts. The Strasbourg Court noted that the retention (forfeiture) of the coins clearly amounted to an interference with peaceful enjoyment of possessions within the first sentence of Article 1: this had not been disputed. But the Court then had to determine whether the material provision was the second sentence of the first paragraph or the second paragraph. It observed that the prohibition on the importation of gold coins clearly constituted a control of the use of property. The seizure and forfeiture of the coins were measures taken for the enforcement of that prohibition. It also noted that the forfeiture of the coins did of course involve a deprivation of property, but in the circumstances the deprivation formed a constituent element of the procedure for the control of the use in the United Kingdom of gold krugerrands. Accordingly, the third, control of use, rule applied.

As to whether the measures could be justified, the Court noted that the prohibition on the importation of krugerrands was undoubtedly compatible with Article 1 of Protocol No. 1. It served a legitimate objective in the public interest. But it was also necessary to consider whether there was a reasonable relationship of proportionality between the means used to enforce the prohibition and the aim sought to be realised. The court had to determine whether the requisite fair balance had been struck. The Court observed that:

The State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question. (para. 52)

The Court noted that under the general principles of law recognised in all contracting States, smuggled goods may as a rule be the object of confiscation. But AGOSI argued (and the Commission had agreed) that this did not apply when the owner was "innocent". The Court noted that the striking of a fair balance depends on many factors, and that the behaviour of the owner of property (in relation to smuggling), including the degree of fault or care which he displayed, is one element in the entirety of circumstances which should be taken into account. (The Court also noted that there was no common practice in contracting States as to whether fault was required for forfeiture.)

Accordingly, although this is not expressly mentioned in Article 1, the Court had to consider whether the applicable procedures were such as to enable reasonable account to be taken of the applicant's degree of fault or care, and also to see whether the applicable procedures afforded the company a reasonable opportunity of putting its case to the responsible authorities. The Court examined the English procedure of judicial review and found that it was sufficient to satisfy Article 1 of Protocol No. 1. Accordingly, there had been no violation of AGOSI's right to property.

Gasus Dosier- und Fordertechnik v. the Netherlands,
1995 Series A no 306-B p 46.
full case here

The applicant, Gasus, was a German company that made an agreement with a Dutch company, Atlas, for the sale to Atlas of a concrete-mixer. Gasus' standard terms and conditions of sale included a "retention of title clause" which meant that they retained ownership in the concrete- mixer until it had been paid for in full. Atlas got into financial difficulties, and the concrete- mixer was seized by the Dutch tax bailiff in respect of Atlas' unpaid tax debts before payment had been received by Gasus. The German seller alleged that the seizure of the goods by the Dutch authorities involved a violation of its right to property under Article 1 of Protocol No. 1. The European Court of Human Rights held that the case fell to be considered under the third rule of Article 1, on the basis that the seizure of the goods was part of the State's machinery for the collection of taxes.

Interestingly, as a first point the State argued that the company did not actually retain ownership in the mixer, but simply had an interest in the nature of security. They said that on this basis Gasus did not have any possession. But the Court was quick to reject that argument. It recalled that "possession" has an "autonomous" meaning for the purposes of Article 1, and was certainly not limited to ownership of physical goods. It was therefore quite immaterial whether Gasus retained ownership or merely had a security interest in the mixer. Either way, they had a protected possession under Article 1 of Protocol No. 1.

As to which of the three rules applied, Gasus argued that they had been deprived of their property under the second rule. But the Court held that the seizure of the mixer was part of the State's machinery for the collection of taxes and so fell to be considered under the second paragraph of Article 1, which enables States to "secure the payment of taxes or other contributions or penalties".

In this context the Court reminded itself that the drafters of the Convention had attached great importance to this aspect of the second paragraph of Article 1: in fact at a stage when this phrase was not yet included, it was already understood by all concerned, said the Court, that States could pass whatever fiscal laws they considered desirable, provided always that they did not amount to "arbitrary confiscation". Here, said the Court, there was no arbitrary confiscation, albeit that the law permitted the tax authorities to seize goods on the tax payer's premises that did not actually belong to it, but to a third party. The Court found support for its view in the fact that this kind of thing was permitted in several legal systems.

The Court then went on to record that the State has a wide margin of appreciation regarding taxing measures, and that its judgment would be respected unless "devoid of reasonable foundation". It cited Sporrong and Lönnroth v. Sweden84 and referred to the requirement of fair balance and proportionality. It also asked itself whether Gasus had been made to bear "an individual and excessive burden".

Applying these tests, the Court found that the seizure of the mixer was compatible with Article 1 of Protocol No. 1. It took into account, in particular: (1) that Gasus was engaged in a commercial venture which by its nature involved risk; (2) that the retention of title clause would provide security against creditors other than the tax authorities; (3) that Gasus could have eliminated the risk altogether by declining to extend credit to Atlas; (4) that it could have obtained additional security, e.g. by insurance; and (5) that Gasus permitted the mixer to be on Atlas' premises.

This case illustrates that, although the Court applies the same test of fair balance to a taxing measure as to other interferences with property, the State is afforded a particularly wide margin of appreciation in cases of this kind.

Comment: Although G did not seek to rely on Prot 1 in the domestic proceedings, those did actually give an opportunity for that issue to be addressed and that was, therefore, enough to satisfy the exhaustion requirement. This may seem a little perverse given G's actual denial that it was applicable but the purpose of the rule is to prevent the State from being prejudiced and it could hardly complain that it was unaware of the issue. The Court's lack of concern about the precise nature of G's interest in the mixer indicates that it is prepared to take an expansive view of the concept of possessions, relying on the French term 'biens' to justify this. Protection might, therefore, be afforded even if ownership had definitely been transferred and there was some right to recover title in default of payment. However, it did not regard the measure as a deprivation of possessions but a tax measure within the third sentence of Art 1 and saw it as analogous to a creditor's ability to recover debts against goods in the debtor's possession. This was not altered by the fact that the goods might be owned by third parties and it cited several legal systems where this was possible. However, the fact that the measure was not treated as confiscation undoubtedly swings the balance in favour of the State even though third party ownership would be relevant to the issue of the measure's proportionality. In concluding that it was acceptable, the Court referred to the ability of G (unlike the tax authorities) to protect itself by insurance but this was effectively what lay behind the retention of title in the mixer. It also emphasised the risky nature of the venture and suggested that the provision of the mixer had presented the second company with a semblance of creditworthiness.

X v. the Federal Republic of Germany (1979), Application No. 8410/78.
full case here

In this case, the applicant was a notary working in Germany. He complained about German legislation which obliged him to reduce his fees when drawing up deeds for certain clients, such as universities, churches and other nonprofit making organisations. The amount of reduction was 80% as compared to what he had previously been entitled to charge under the regulations. He complained, inter alia, under Article 1 of Protocol No. 1. The European Commission of Human Rights made short shrift of the application. It stated that a notary's claim for fees could only be considered a possession when such a claim has come into existence in a particular matter, on the ground of services actually rendered and on the basis of the existing regulations for notaries' fees. The mere expectation that the legal regulations on fees would not change could not be considered a property right.

Agrotexim v. Greece (A330-A (1995).
full case here

In this case, the applicants were companies who held shares in a brewery in Athens. In order to overcome certain financial problems, the brewery wanted to develop two of its sites. But the Athens Council decided to adopt measures with a view to expropriating the land. The brewery then went into liquidation, and liquidators were appointed. The applicant shareholders complained to the European Commission of Human Rights that the expropriation measures were in breach of Article 1 of Protocol No. 1.

The State took the preliminary point that the applicants as shareholders were not victims of any violation of the company's right to property. The Commission held that they could be victims, taking into account in particular that the interference with the rights of the brewery had caused a fall in the value of its shares, and thus had diminished the value of the applicants' shareholding. But the Court disagreed. It opposed the idea that a shareholder should generally be able to claim for violations of the property rights of a company. It pointed to the fact that disagreements between shareholders and a company's board of directors, or amongst shareholders, are common. Such disagreements could cause difficulties in relation to an infringement of the company's rights. If the Commission's view were followed, there would be a risk - in view of the competing interests - of creating difficulties in determining who would be entitled to claim. Such a view would also cause real problems about exhausting domestic remedies, as shareholders do not generally in Member States have the right to sue in respect of violations of the company's rights.

The Court therefore held that the "piercing of the corporate veil" - or disregarding of the company's legal personality - will be justified only in exceptional circumstances, in particular, when it is clearly established that it is impossible for the company to claim through the organs set up under its articles of incorporation, or - in the event of liquidation - through its liquidators. In this case, there was no legal reason why the liquidators should not claim, and no suggestion that they were not doing their job properly. The applicants' claim therefore failed on that preliminary point.

Akkus v Turkey, Judgment of the ECtHR, 9 July 1998
full case here

Akkus (A) and her husband (who died in 1992) owned land which the national water board expropriated in September-October 1987 in order to build a hydro-electric dam. The land had been used for growing rice but now lay under water. More than 3,000 families had been affected by the expropriations resulting from the dam construction scheme. According to A, a study commissioned by the board had found the land to be worth between TRL 3,200 and 3,500 per square metre but the amount paid in 1987 had been between TRL 800 and 850. The board's committee of experts assessed the value of A's land at TRL 122,000 which had been paid when the expropriation had taken place. In October 1987 A applied to a court for increased compensation and requested that the rate of inflation be taken into account when determining the additional loss. She was awarded additional compensation of TRL 271,039 and simple default interest at the rate of 30% per annum from the date of the expropriation, bringing the total compensation to TRL 393,039, as well as TRL 61,123 for legal costs. The board appealed to the cassation court on points of law and A cross-appealed, seeking a ruling that the basis for calculating the additional loss should be the rate of inflation (which was 70% per annum) and not the rate of statutory interest for delay. The first instance judgment was upheld by the cassation court in September 1990. The rate of interest payable on debts to Turkey was 84% per annum.

A (now living with her son-in-law who provided for her needs) complained about the delay in paying the additional compensation and six months later (in February 1992) the additional compensation was paid.

The Court held:
- that the difference between the value of A's compensation as finally determined by the cassation court and its value when paid was due solely to delay on the part of the authorities and caused her to sustain loss in addition to the loss deriving from the expropriation of her land;
- that the authorities, by deferring the payment of the compensation for seventeen months, had rendered it inadequate and thus upset the balance between the protection of the right to property and the requirements of the general interest;
- that there was, therefore, a violation of Prot 1 Art 1;

Comment: Although Prot 1 Art 1 does not necessarily require that full compensation be paid where property has been expropriated (see Lithgow v United Kingdom, Ser A No 102), the guiding principle that there be a fair balance between the general and individual interest obviously requires that the sum considered appropriate actually be paid. As this case illustrates, an abnormally lengthy delay in the payment of compensation can - where there is a high level of inflation - be as potentially detrimental as failure to make any payment at all (see Guillemin v France, (1998/99)).

Fredin v. Sweden (No. 1) judgment of 18 February 1991
Series A no. 192, p. 19.
full case here

The extraction of gravel had required a permit since 1963 and, in an amendment to nature conservation legislation in 1973, permits over 10 years' old could be revoked without paying compensation. Fredin's parents were given a permit for their land in 1963, the extraction rights having already been granted to two companies. Those rights were never exercised and, following their acquisition of the property, the permit was transferred to Fredin and his wife in 1979. They then began to extract gravel, were given permission to build a quay for loading ships (valid for as long as they had a gravel pit) and lodged financial security for the restoration of the land after extraction. In 1984 they were notified that, in the interests of nature conservation, gravel extraction should cease, a further financial security for restoration should be lodged and the land should be restored by the end of 1987. Appeals to the government against the revocation of the permit and the refusal of a special permit allowing extraction as part of a restoration plan were unsuccessful, although they were allowed an extra 11 months to comply.

Mr and Mrs Fredin complained that the revocation was a deprivation of their property, had discriminated against them as the sole independent operators in the area, and that they were unable to challenge the government's decisions in a court.

The Court held:
- that, while the revocation interfered with Mr and Mrs Fredin's right to the peaceful possession of their possessions, its consequences were not so serious as to amount to a de facto deprivation of property since it had not taken away all meaningful use of their property and the income from the gravel extraction had become uncertain once the permit was 10 years' old;
- that the interference was not contrary to Prot 1 Art 1 since (a) the power of revocation served a legitimate aim, namely, the protection of the environment, (b) the revocation decision had not been unlawful or arbitrary, (c) the power had been framed with such precision as to its scope and manner of exercise for its effects to be sufficiently foreseeable and (d) the decision was not disproportionate in striking a balance between the general and individual interests as Mr and Mrs Fredin had no legitimate expectation of being able to continue extraction for a long period of time and had been allowed nearly 4 years to close down their operation;

Gaygusuz v. Austria judgement of 16 September 1996 ( Reports of judgements and decisions 1996-IV, paras 36-41)
full case here

Gaygusuz, a Turkish citizen, had worked with interruptions in Austria from 1973 until October 1984, apparently making the compulsory unemployment insurance contributions required of employees. There had then been periods when he was unemployed alternating with periods when he was certified unfit for work for medical reasons and he had been in receipt of the corresponding benefits. However, between July 1986 and March 1987 Gaygusuz had received an advance on his retirement pension in the form of unemployment benefit. When this entitlement expired Gaygusuz applied for an advance on his pension in the form of emergency assistance (which was only payable to persons in such a situation providing an application was made within three years of the entitlement to unemployment benefit having been exhausted) but this was refused because he did not have Austrian nationality and this was specified in the insurance law as a condition for entitlement to such an allowance. This ruling was upheld on appeal and it was also then stated that his case did not fall into any of the categories for which exemption from the nationality condition was provided (which included, in the case of non-Austrian nationals, the existence of a reciprocal arrangement with the person's State or employment for 156 weeks in the five years preceding the application with compulsory payment of unemployment insurance contributions). The constitutional court declined to accept Gaygusuz's case for adjudication on the basis that it had insufficient prospects of success but it referred the case to the administrative court. This ruled that it had no jurisdiction over the matter since the unconstitutionality of a legal provision was the only matter raised by him.

Gaygusuz, who had been living in Turkey since September 1987, complained about the refusal of emergency assistance and the absence of a fair hearing, as well as the failure to respect his private life and the peaceful enjoyment of his possessions.

The Court held:
- that there was no entitlement to emergency assistance under the law unless payment had been made to the unemployment insurance fund;
- that it had not been argued that Gaygusuz did not satisfy this condition and the refusal of assistance was based exclusively on the finding that he did not have Austrian nationality or fall into any of the exempted categories from that requirement;
- that, as the right to emergency assistance was a pecuniary right, Prot 1 Art 1 was applicable without having to rely on the link between the entitlement and the obligation to pay 'taxes and other contributions';

Comment: The finding that Prot 1 Art 1 was applicable without having to rely on that provision's reference to 'taxes and other contributions' does not seem entirely to make sense. This reference is in fact directed to the ability of the State to control the use of property and the Court itself found that Gaygusuz's payment into the unemployment fund meant that he had satisfied all the conditions for emergency assistance bar nationality. The contribution was, therefore, what had created the pecuniary right whereas a claim under Prot 1 Art 1 might not have arisen if the payment of emergency assistance did not derive from a hypothecated source but came from general taxation; in those circumstances it would be possible to use the qualification in the provision about taxation to provide benefits exclusively for nationals. Where, however, there is an apparently clear linkage between payment and benefit, any distinction between contributors must have a rational and objective justification if no violation of Art 14 and Prot 1 Art 1 is to be established.

Guillemin v. France, (105/1995/611/699) 21 February 1997
full case here

Guillemin owned a plot on which there was a building used as a secondary residence by a member of her family. The plot fell within land needed for the development of a residential area in a town and in September 1982 the mayor applied to the expropriations judge for an order transferring it to the municipality and setting the amount of compensation to be paid to her. The following month there was a declaration by the département's prefect that the compulsory purchase of all the land concerned was in the public interest and in respect of which Guillemin brought proceedings in the administrative court in November 1992. Such a declaration was required before an expropriation moved from its administrative or judicial stage. The expropriation order was granted in December 1982 and she appealed against it in March 1983. Four months later the development corporation responsible for carrying out the scheme informed Guillemin that she should have vacated her plot two weeks beforehand and the town council also demolished its fence, buildings, service infrastructure, vegetable garden and orchard. The appeal court's expropriation division increased the amount of compensation payable in respect of the plot to FRF 221,858 in October 1983 and this was held at the official deposits bank. Guillemin lodged appeals with the cassation court against the expropriation order and the appeal court judgment in December 1982 and October 1983 respectively. In October 1985 the administrative court set aside the public interest declaration because of procedural errors and the recommendation by the inquiry prior to it being made that the scheme should not include existing houses, such as Guillemin's, with sufficient land to make a garden for family use. The council appealed in December 1985 and lodged a pleading four months later. The conseil d'état upheld the administrative court's judgment in March 1989 but refused Guillemin's application for a formal note to be taken that the council had automatically abandoned the proceedings by failing to file a supplementary pleading in time. It also refused her claim for compensation which had been submitted for the first time on appeal. In January 1990 the cassation court set aside the expropriation order and, in consequence, the appeal court judgment, and both its judgments were served on the council in May 1990. The following month Guillemin unsuccessfully applied to the council for either restoration of her rights or FRF 4,194,655.65 compensation. She applied to the state counsel in November and December 1990 but in March 1991 he decided to take no action. Guillemin challenged the council's implied decision to refuse her application in the administrative court in December 1991, her claim for restoration being accompanied by an application for FRF 1,971,795 compensation for non-pecuniary damage and loss of enjoyment of her property. In January 1992 she brought proceedings in the civil court against the mayor and the development corporation, seeking demolition of the buildings erected by the council on her land, periodic penalties for non-compliance and damages. The defendants submitted that the property could not be returned because plots had been sold on to individual purchasers which had been built on and were occupied. In February 1993 the civil court deferred judgment until the administrative court ruled and listed the case for a hearing in June 1993 by the judge preparing the case for trial. The administrative court held a hearing in May 1994 and ruled two weeks later that the claim for the return of the land was inadmissible as orders could not be issued to the authorities. It also held that the issue of compensation for the illegal expropriation was for the ordinary courts. In the meantime Guillemin's case in the civil court, having been struck from the list in March 1994, was entered on the list again in November 1994 and two months later she filed fresh submissions seeking compensation. In October 1995 the civil court noted that Guillemin had implicitly abandoned the application to have the buildings demolished and held that she was entitled to compensation from the council, ordering a valuation report by an expert who received the file the following month. There was an inspection of the site in March 1996 and the expert filed his report four months later, valuing Guillemin's claim at FRF 1,602,805.

The proceedings were still pending in the civil court. Guillemin complained about the length of the proceedings, the failure to enforce the judicial decisions in her favour, the loss of her property and the late notice given to vacate her land.

The Court held:
- that the relevant period ran from Guillemin's application to have the prefect's declaration set aside and the proceedings were still pending since the action to secure compensation should be included in the period taken to resolve the dispute even though it was begun after the application to the ECmHR;
- that this period already exceeded fourteen years and was at first sight unreasonable;
- that expropriation proceedings were relatively complex because they came under the jurisdiction of both the administrative and ordinary courts which could, as in the present case, give conflicting decisions;
- that as the division of jurisdiction between the courts was not obvious to the civil court, Guillemin could not be criticised for not bringing her action for compensation before the right court;
- that Guillemin could also not be held responsible for delays other than on account of organisational difficulties;
- that it was common ground that G had been deprived of her possessions and that the expropriation had not been carried out in a manner laid down in domestic law;
- that, as the erection and sale of the buildings on G's land permanently deprived her of the chance of regaining possession, her only course was to seek compensation;
- that compensation would only be adequate reparation if account was taken of the length of deprivation and it should be payable within a reasonable time;
- that the court proceedings for compensation had lasted five years so far and no compensation had yet been made, notwithstanding that it could have been agreed on even after the expropriation order had been issued;
- that the potentially large sum that might be awarded at the end of the pending proceedings did not offset the failure to make any payment and could not be decisive in view of the length of all the proceedings instituted by Guillemin;

Comment: The reason for the expropriation was not in principle incompatible with Prot 1 but the lack of a lawful basis meant that it was an unacceptable deprivation. Although the Court has expected restitution as the most appropriate remedy in such cases, there has been a recognition that this is not always feasible (see Papamichalopoulos v Greece (Art 50), (1996)) and this seems to be the approach readily accepted in the present case. The amount of compensation was not fixed but the illegality is likely to require payment of the full value, notwithstanding that the absence of a procedural failing might have led to a different basis of assessment being justified (see Lithgow v United Kingdom, Se A No 102). Moreover the Court underlined that there is a need to take into account both the damage arising from the length of the deprivation of property and the need for payment within a reasonable time. The latter might be mitigated by payment of appropriate interest but the total failure to pay here inevitably led to the finding of a violation. It is the actual payment that provides the remedy and so the acknowledgement of the legitimacy of Guillemin's claim could not deprive her of the status of being a victim.

Hentrich v. France Judgment of 22 Sept. 1994,
Series A, No. 296-A; (1994) 18 EHRR 440
full case here

Mrs Hentrich bought some land in Strasbourg on which further building was not permitted for 150 000 FRF. She was then told that the Revenue would exercise a right of preemption, that is, a right to buy the property, because they considered the price that she had paid was too low. In accordance with the law they were offered the sale price, a ten per cent premium and the costs and expenses of the sale. The power of pre-emption was provided to ensure the proper payment of the registration fees levied on contracts of sale and was exercisable where a sale price was considered too low. It was not necessary to establish that the low price was attributable to tax evasion and a dispossessed purchaser was not given an opportunity to show that he acted in good faith or that the price in question was a normal one. The premium was payable because the power might inadvertently be applied to persons who were not trying to evade tax. H and her husband unsuccessfully sought to have the pre-emption set aside for procedural failings and breach of the ECHR. However, there was no system of adversarial proceedings in which Mrs Hentrich could argue that the price she had paid was not in fact too low. The courts held that, as a discretionary power had been conferred, a dispossessed purchaser could not validly challenge a pre-emption. The first instance proceedings were begun in June 1980 and judgment was given in December 1980. An appeal was lodged the following month, the pre-trial proceedings were completed in January 1984 and judgment was given in February 1985. A further appeal to the cassation court was filed in June 1985 and judgment was given two years later. Although the land has been left at the disposal of a neighbouring market gardener, it can now be built on and is worth over 2,000,000FF.

Mrs Hentrich claimed that her property had de facto been expropriated, and that was not contested. She argued that the system of pre-emption was not in the public interest if applied, as in her case, where there was no question of bad faith or intention to evade tax. The European Court of Human Rights rejected this argument, citing the "wide margin of appreciation" afforded to States in assessing the public interest.

The Court then made an important ruling on the question of lawfulness. It held that:

…the pre-emption operated arbitrarily and selectively and was scarcely foreseeable, and it was not attended by the basic procedural safeguards. In particular, Article 668 of the General Tax Code, as interpreted up to that time by the Court of Cassation and as applied to the applicant, did not sufficiently satisfy the requirements of precision and foreseeability implied by the concept of law within the meaning of the Convention. A pre-emption decision cannot be legitimate in the absence of adversarial proceedings that comply with the principle of equality of arms, enabling argument to be presented on the issue of the underestimation of the price and, consequently, on the Revenue's position - all elements which were lacking in the present case. (para. 42)

The Court then went on to look at proportionality, and stated that in order to assess this, it would look at the degree of protection from arbitrariness. The Court found that there had not been sufficient protection of this kind: it noted that Mrs Hentrich had been selected for this procedure, which was rarely used. There was no suggestion that she had acted in bad faith, and there would have been other means open to the State to discourage tax evasion (e.g. to take proceedings to recover unpaid tax). In these circumstances, the Court found that Mrs Hentrich had been made to "bear an individual and excessive burden".

Comment: This case is important, particularly because of its emphasis on the need for a fair procedure, and on the requirement that State must not act arbitrarily - both under the principle of legality, and under the heading of proportionality. Although the Court's ruling was primarily concerned with the proportionality of the pre-emption decision, it made it clear that such a taking of property (and presumably other deprivations of property where the conduct of the owner is a factor in the decision giving rise to it; cf Agosi v United Kingdom, Ser A No 108) could not be regarded as lawful for ECHR purposes without a fair hearing satisfying Art 6(1). This is now a requirement under French law but the Court's concern that the power also lacked precision and foreseeability does not seem to have been addressed. These features not only deprived the power of its legal basis under ECHR criteria but were also part of the reasons for regarding it as disproportionate. It was also significant that such a draconian power did not appear to be needed in other States parties and that the supposedly lost tax could be recovered in other, less sweeping ways.

Holy Monasteries v. Greece, Judgment of 9 Dec. 1994, Series A, No. 301-A.
full case here

Greek Orthodox monasteries have a distinct legal personality in public law from the orthodox church, into which they are hierarchically integrated but unlike which they play no direct or active part in public administration. In 1930 they had been allowed to retain only the property (out of that accumulated over the previous centuries) which was considered necessary for their needs and the remainder was to be subject to expropriation (which had not generally occurred) and managed on their behalf by an office established for this purpose, with the revenue being applied to church purposes. Title to their property relied primarily on adverse possession as deeds were often lacking or had been destroyed. A law was adopted in 1987 under which the State could appoint most of the members of the office and which provided that the State would become the owner of all their property unless title was established within six months by a registered deed, statutory provision or court decision. The law was adopted because the property was allegedly being wasted, improperly exploited or abandoned to the detriment of the country's agriculture, stockbreeding and forestry. It was also asserted that most of the property belonged to the State and was being occupied without legal title. Where the monasteries established their title to agricultural land, forestry and quarries, it could be transferred to the State and 5% of the gross revenue from those allowed to use it would be assigned to the national education service. There was a power to grant land to monasteries which did not have sufficient for the purpose of cultivation by the monks themselves. The office was vested with the exclusive management and representation of all the monasteries' immovable property, including the ability to take or defend legal proceedings. The law did not apply to monasteries that came under the authority of foreign patriarchs. In the course of a challenge (which was successful on unrelated grounds) to certain appointments made by the State to the office, the supreme administrative court ruled that the 1987 law was constitutional and compatible with the ECHR. In 1988 an accord between the church and the State provided that monasteries would agree to transfer part of their property to the latter. Pursuant to this some monasteries concluded an agreement with the State (ratified by a law) transferring to it most of their agricultural and forest property. The State undertook to pay for 85 preachers and to spend 1% of the budgetary appropriation for the church in supporting the monasteries concerned. As yet no transfer operations under the 1987 law had been completed but circulars had been issued to local authorities about the State's ownership of the property and possible implementing measures to be taken. These authorities had subsequently prevented some work being carried out on certain properties and refused to approve development plans.

Five monasteries which were not party to the 1988 agreement and three that were complained about the transfer of ownership. The Commission, having ordered the joinder of the two applications and considered them admissible, found no breach of Prot 1 Art 1 as regards either the transfer of ownership provided for in the 1987 law or the provisions of that law as amended by the 1988 law. It also found no breach of Arts 6(1), 9, 11 and 13 or of Art 14, taken with Arts 6, 9, and 11 and Prot 1 Art 1. In addition it found no breach of Art 6(1) as regards the right of access to a court in respect of either the three monasteries or (11-2) the five monasteries not party to the 1988 agreement. The government objected that the monasteries were not non-governmental organisations and that domestic remedies had not been exhausted as no court had given a ruling in a case concerning the alleged violation of their rights.

The Court held:
- that, although no practical measures had been taken to apply the laws to the monasteries, they had had consequences for their property because of the special nature of some of the provisions, the adoption of ministerial circulars and the taking of administrative decisions;
- that, although it could not determine which of the disputed tracts of land actually belonged to the State, the monasteries had completed the period of possession required to rely on adverse possession before the 1987 law came into force;
- that the deeming provision was not a procedural rule relating to the burden of proof but one transferring full ownership of the land in question to the State;
- that the fact that no eviction order had been issued to the monasteries not party to the 1988 agreement was no guarantee that none would be issued and there was, therefore, a deprivation of their possessions;
- that any doubts as to the reasons for the measures were insufficient to deprive the 1987 law of its legitimacy as being in the public interest;
- that there was a violation of Prot 1 Art 1 since the absence of compensation imposed a considerable burden on the five monasteries and there was not, therefore, a fair balance between the various interests involved;
- that it was not possible to conclude that the three monasteries who signed the 1988 agreement had done so under duress and there was, therefore, no interference with their property;

Comment: Although the 1987 law had not been implemented, the Court understandably did not regard this as an abstract challenge to it; apart from the deeming provision, administrative action was affecting the monasteries' ability to deal with their property. Although there would have been no deprivation of property if it had actually belonged to the State and the Court was not in a position to resolve disputes about particular tracts, it was reasonable to rely on the principle of adverse possession given the long history of occupation by the monasteries, the absence of a Greek land survey and the inapplicability of registration to most of the land concerned. The Court did not preclude the use of procedural rules governing the burden of proof in title disputes but, apart from the automatic right to use and possess the property concerned, the history already referred to meant that the only conclusion that could be reached in this case was that a transfer was taking place. Moreover, although possession had not been taken up, the law had effected a sufficient interference with the monasteries' possessions to constitute a deprivation of them. The Court did not pursue doubts about the motives behind the law which were encouraged by its own provisions; the proposed transfer of the land involved to farmers was optional and some of it would go to public bodies. This was probably appropriate in the absence of clearer evidence but there is no reason why an ostensibly legitimate public interest should not be condemned as a sham where the position is more certain. However, as the Court's previous case law has made clear, the justification for an expropriation is unlikely to be acceptable without compensation of some kind, whatever the public interest at stake (see Lithgow v United Kingdom, Ser A No 102). In deciding that it was needed in this case, the Court took account of the fact that it was paid in previous measures directed against monasteries and did not consider the 5% of revenue paid into the education fund or the possibility of granting back land for monks to cultivate as in any way lessening the substantial loss being incurred. Duress would obviously vitiate an apparently voluntary transfer but, in holding that it was not present in the case of the three monasteries party to the 1988 agreement, the Court saw their signature as voluntary and did not consider that this was against the threat which the 1987 law posed to all their property.

The Holy Monasteries v Greece (Article 50), (10/1993/405/483-484), judgment of 1 September 1997
full case here

The Holy Monasteries (the monasteries) had occupied certain land for centuries and their title to it relied primarily on adverse possession as deeds were often lacking or had been destroyed. A law adopted in 1987 provided that the State would become the owner of all their property unless title was established within six months by a registered deed, statutory provision or court decision. The exclusive management and representation of all the monasteries' immovable property, including the ability to take and defend legal proceedings, had previously been vested in an office over which they could exercise no control. No transfer operations under the 1987 law had so far been completed but circulars had been issued to local authorities about possible implementing measures to be taken. There was held to be a violation of Prot 1 Art 1 as regards the absence of compensation from the law.The monasteries were also awarded GRD 8.4 million for costs and expenses and the question of an award for pecuniary damage was reserved.

In May 1996, a law was passed amending the 1987 law which (a) allowed monasteries such as the applicants to protect their rights and interests with respect to all their real property using any types of evidence available under Greek law, (b) revoked all administrative acts and circulars pursuant to the 1987 law regarding such monasteries and (c) repealed all contrary substantive or procedural provisions as regards them. Subsequently the applicant monasteries indicated to the Court that all issues under Art 6 had been resolved but that the restoration of their rights under Prot 1 Art 1 remained unclear. Greece then informed the Court that a friendly settlement had been reached, the 1996 law having been interpreted in an opinion of the council of state so as to leave no doubt as to the monasteries' ownership of the land in issue. It applied for the case to be struck out of the list. The monasteries informed the Court that they agreed to this. The Court accepted the settlement.

Comment: The monasteries had never been physically dispossessed of the properties concerned; the deprivation resulted from their inability to establish title to them. As the reform of the law meant that they were now in a position to demonstrate the basis on which they were asserting ownership, the properties were effectively restored to them and there appears to have been no consequential loss in the interim which might have justified an award of compensation. The Court's acceptance of the settlement was, therefore, entirely proper. However, its willingness to see a settlement appears to have encouraged it to be generous in the extensions of time allowed for this purpose; this may become a less exceptional aspect of the Court's work following the entry into force of Prot 11.

Katikaridis and others v. Greece (72/1995/578/664) 15 November 1996
full case here

Katikardis and others (the applicants) were the owners of properties used for business purposes and of which a part of each had been expropriated in July 1981 for the purpose of constructing a flyover. The expropriation was made under a 1977 law on the obligations of adjoining owners where major roads are built which was applied to a road improvement scheme involving their properties. The latter law created a presumption that the owners of properties on major roads benefited when such roads are widened and that they had, therefore, to contribute to the cost of expropriation if they were expropriated. Under this law the owners were required to pay for an area fifteen metres wide where a major road of up to thirty metres was built in an area not covered by a town development plan. The amount per square metre assessed for the compensation was GRD 14,500 but, although a first instance court made a declaration in June 1984 that the applicants were entitled to that compensation, Greece did not compensate them for the fifteen-metre-wide area laid down in the 1977 law. In July 1984 the applicants then sought payment of the assessed compensation, stating that their properties were on a secondary road which was no longer linked to the major road which now passed six metres above them. The first instance court dismissed their application in June 1985 on the ground that the statutory presumption about benefiting from the expropriation was irrebuttable and applied in their case. The appeal court found the presumption unconstitutional and held in June 1987 that the flyover had aversely affected the applicants' businesses. This ruling was reversed by the cassation court's third division in June 1989 but it referred the case to its fourth division which held in November 1990 that the 1977 law did not apply to expropriation for the construction of a flyover. The issue was referred to the full cassation court and the applicants' pleading relied upon Art 6(1) and Prot 1 Art 1. In June 1991 the full court upheld the third division's ruling that the presumption was irrebuttable and referred the case back to the fourth division so that it could rule on the merits of the applicants' action. They did not resume the proceedings since it was bound to fail after the full court's judgment.

The applicants complained about the impossibility of obtaining full compensation and the length of the proceedings.

The Court held:
- that it was not contested that the expropriation pursued a lawful aim in the public interest; (7) that it was legitimate to take into account the benefit derived from roadworks when assessing compensation;
- that, the system applied here, as it was too inflexible and took no account of differences due in particular to the nature of the works and layout of the site, was manifestly without reasonable foundation and (in the case of large number of owners) necessarily upset the fair balance between the protection of the right to property and the requirements of the general interest;
- that, having regard to (a) the strong arguments that the applicants had to put forward as to the reduction in value caused by the flyover to their premises and (b) the appeal court finding that they had sustained loss as a consequence of the works for which they should be paid commensurate compensation, the applicants had to bear an individual and excessive burden which could have been rendered legitimate only if they had had the possibility of obtaining payment of the compensation in question;
- that there was, therefore, a violation of Prot 1 Art 1;

Katte Klitsche de la Grange v. Italy judgment of 27 October 1994,
Series A no. 293-B
full case here

Katte Klitsche de la Grange's development plan for his land, together with the text of an agreement for apportioning the infrastructure costs, was approved by the district council. The forestry authority then approved the development of part of the land and the agreement was signed subject to the authority's approval for the development of the remainder and compliance with planning and other legislative provisions. Katte Klitsche de la Grange was also bound to accept any modifications required by law or on reasonable public interest grounds. He commenced work on the infrastructure, 130 out of a total 202 plots were sold and 61 building permits (including three for K) were granted between 1968 and 1976. However in June 1969 the council adopted a land-use plan which had a five-year duration and which excluded part of Katte Klitsche de la Grange's land from the area designated for residential accommodation. Katte Klitsche de la Grange claimed that it became impossible to sell plots on which building was not permitted. The regional authority refused Katte Klitsche de la Grange's request to amend the detailed maps annexed to the land-use plan so as to include the land covered by the 1968 agreement as there was nothing to prevent the council from considering a similar application if it subsequently adopted an alteration to the plan. In February 1976 Katte Klitsche de la Grange, contending that there were no public interest grounds justifying the council's change of policy, sought the annulment of the plan which was granted (insofar as it concerned his property) the following July. This decision was upheld by the administrative court in February 1978 but the detailed maps were not rectified. In May 1979 the regional authority designated an area which included Katte Klitsche de la Grange's land as protected woodland where construction was prohibited. In February 1980 Katte Klitsche de la Grange and some owners of the plots sought to have this decision set aside but they were held not to have standing in January 1983 since the plots concerned had not been defined precisely. In July 1984 Katte Klitsche de la Grange sought an order requiring the council to bring the detailed maps annexed to the land-use plan into conformity with the 1968 agreement and to issue the building permits in respect of which it had not yet given a decision. He was held to lack standing in November 1984 as the 1976 decision had been automatically enforceable and had reinstated the legal situation prior to the annulled measure but, as it did not cover the building permits, separate proceedings should be commenced in relation to them. This decision was upheld by the administrative court in February 1986. Katte Klitsche de la Grange brought a civil action against the council and regional authority in May 1978 for compensation for the loss of the right to build on the land or its de facto expropriation but, as they contested jurisdiction, he sought a preliminary ruling from the cassation court on the civil courts' competence in September 1979. It ruled in January 1981 that they did have jurisdiction if the building prohibition constituted a de facto expropriation and Katte Klitsche de la Grange reopened the civil proceedings in July 1981. His action was dismissed in March 1982 and appeals to the appeal court and cassation court in June 1982 and December 1984 respectively were dismissed in July 1984 and May 1986. The latter court held that planning decisions did not affect rights but legitimate interests and, as the total ban on building was of limited duration, Katte Klitsche de la Grange's property was not the subject of de facto expropriation requiring compensation. It also held that compensation was not required for the designation of the land as protected woodland as there were intrinsic restrictions on this category of property and no right to build on it ever existed.

Katte Klitsche de la Grange complained about the building prohibition without compensation, the differential treatment of landowners, the failure to execute the administrative court's decision, the length of the proceedings and the fact that the property restrictions were not adopted in the general interest.

The Court held:
- that the 1968 agreement could have no effect on the powers in the planning sphere and the mere approval of the land-use plan was sufficient to restrict Katte Klitsche de la Grange's exercise of his right to the peaceful enjoyment of his possessions;
- that this interference fell under the first sentence of Prot 1 Art 1's first paragraph as it did not involve a deprivation or control of the use of property;
- that, as the annulment of the land-use plan in July 1986 was automatically enforceable and had the effect of reinstating the legal situation obtaining prior to its adoption, the development agreement was valid again and Katte Klitsche de la Grange could have sought the authorisations necessary to continue with the housing scheme;
- that, although Katte Klitsche de la Grange would have had ample time to take the appropriate steps for this purpose after the plan had been annulled, he did not do so;
- that there was never an absolute prohibition on building on all of Katte Klitsche de la Grange's land;
- that the conditions for compensation were not satisfied in Katte Klitsche de la Grange's case because the land-use plan was of limited duration and the restrictions were inevitably temporary;
- that, in the light of these considerations the balance between the interests of the community and those of Katte Klitsche de la Grange was not upset and there was, therefore, no violation of Prot 1 Art 1.

Comment: The nature of the restrictions and their temporary character meant that they did not amount to an expropriation and some compensation could not, therefore, have been automatically expected (see The Holy Monasteries, and Stran Greek Refineries). Nevertheless its payment will be a factor in determining whether a fair balance has been achieved between the interests of the community and those of the individual by a lesser interference with property. It seems inappropriate, therefore, for the Court to have attached importance to the fact that under Italian law the restrictions would not merit compensation as a de facto expropriation. However, Katte Klitsche de la Grange's failure to seek to enforce the development agreement, the absence of a total ban on building and the limited duration of the restrictions were sufficient to support the conclusion that a fair balance had been achieved without compensation also being required. .

Case of Loizidou v. Turkey (Merits), 18 December 1996
full case here

Mrs. Loizidou is a Greek Cypriot, and she owned several plots of land her home was in Kyrenia, which is now in the occupied area of northern Cyprus. As a result of the Turkish military invasion of Cyprus in 1974, Mrs. Loizidou was forced to leave her home and possessions.

The occupied area became known as the Turkish Republic of Northern Cyprus (TRNC) and its constitution (adopted in May 1985) proclaimed in Art 159 that property considered to be abandoned or ownerless would belong to it. Loizidou stated that she had been prevented in the past and was still prevented from returning to the town and 'peacefully enjoying' her property.

In November 1983 the United Nations Security Council had declared the purported cession of northern Cyprus to be legally invalid and had called upon States not to recognise any Cypriot State other than the Republic. This was endorsed by the Commonwealth Heads of Government and reaffirmed by the Security Council in May 1984 when an exchange of ambassadors between Turkey and TRNC was also declared to be illegal. In November 1983 the COM of the CoE and the European Communities separately declared that it recognised the Republic's government as the sole, legitimate government of Cyprus. In January 1990 Turkey made a declaration under Art 46 accepting the Court's jurisdiction for three years which was restricted, inter alia, to matters performed within the boundaries of its territory and to matters raised in respect of facts, including judgments based on such facts which have occurred subsequent to the date of its deposit. The declaration was renewed for a further three years in January 1993.

The Turkish Government argued, inter alia, that she was unable to claim, because the interference with her property occurred before 1990, when Turkey accepted the jurisdiction of the European Court of Human Rights in relation to events thereafter. The Court recalled that it had already indorsed the notion of a continuing violation in Papamichalopoulos and Others v. Greece, and the effects of this notion on the temporal limitations of the competence of the Convention organs. The present case concerned a continuing violation, provided that the applicant could still be regarded for the purposes of Article 1 as being the legal owner of the land. The Court found that she could be so regarded, and that a constitutional "law" passed by the "Turkish Republic of Northern Cyprus", which purported to deprive her of title to her property, could not be regarded as valid law.

The Court held:
- that, as the international community did not regard the TRNC as a State under international law and the Republic had remained the sole legitimate government of Cyprus (which was itself bound to respect international human rights standards), it could not attribute legal validity for the purposes of the ECHR to such provisions as Art 159 of the TRNC's constitution on which Turkey relied;
- that Loizidou could not, therefore, be deemed to have lost title to her property as a result of the TRNC's constitution and no other facts entailing loss of title had been advanced or found;
- that both the Republic and Loizidou had consistently asserted that title in the northern part of Cyprus had been retained;
- that, as Loizidou must still be regarded as the legal owner of the land for the purposes of Art 8 and Prot 1 Art 1, the objection ratione temporis fails;
- that Turkey had acknowledged that Loizidou's loss of control stemmed from the occupation of northern Cyprus by its troops and the establishment there of the TRNC and did not dispute that she had on several occasions been prevented by Turkish troops from gaining access to her property but it had maintained that its forces were acting exclusively in conjunction with and on behalf of the allegedly independent and autonomous TRNC authorities;
- that the continuous denial of Loizidou's access to her property in northern Cyprus and the ensuing loss of all control over it was imputable to Turkey;
- that, as Loizidou's complaint had been about the gradual effect of the refusal of access over sixteen years on her right as a property owner and as it was this complaint as so formulated that was addressed by the parties in their written submissions, the complaint could not be characterised as being limited to freedom of movement and Prot 1 Art 1 was applicable;
- that, since the refusal of access since 1974 meant that Loizidou had effectively lost all control as well as all possibilities to use and enjoy her property, the continuous denial of access must be regarded as an interference with her rights under Prot 1 Art 1;
- that such an interference, although it could not be regarded as a deprivation or control of use, fell clearly within the provision's first sentence as an interference with the peaceful enjoyment of possessions;
- that it had not been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention justified the complete negation of Loizidou's property rights in the form of a total and continuous denial of access and a purported expropriation without compensation and the fact that property rights were the subject of intercommunal talks could not provide a justification for this situation under the ECHR;
- that there was, and continued to be, a violation of Prot 1 Art 1.

Phocas v France, Judgment of the ECtHR, 23 April 1996
full case here

Phocas (P) owned commercial premises at a crossroads and in 1960 a scheme for improving the latter was adopted. In 1962, believing that expropriation was imminent, he transferred his greengrocery business to other premises. However, as there was no expropriation, P applied in March 1965 for planning permission to convert the building into flats.

The application was adjourned four months later until the approval of the village's development plan as his project could jeopardise the scheme to improve the crossroads. This was confirmed in March 1967 after a fresh planning application but, after the period of adjournment expired the following July, P sought a final decision from the prefect. He did not receive a reply and sought judicial review in December 1967 of the two decisions and the implied refusal of permission. P did not respond to a pleading sent to him in March 1968 and, after a reminder, he ultimately abandoned the action in September 1972. The development plan had been published in March 1968 and provided for the acquisition of part of P's property for the crossroads improvement, as well as designating the remainder as land on which further building was not permitted. A fresh application for planning permission in May 1969 was adjourned the following October until the publication of the decision approving the plan. That decision was taken the same day by the prefect.

In January 1970 the housing ministry informed P that the deferral was being maintained but that he was entitled to ask the local authority benefiting from the plan to purchase the reserved part of his land. The following May P, through the ministry, made such a request and wrote to the prefect about this in October 1971 and May 1972. There was a meeting with the relevant department in January 1973 and a formal offer was made in November 1974 but P claimed that the amount involved was too small. He was told in February 1975 that it could not be varied but that he could ask the expropriations judge to fix the amount. A reminder of this possibility was sent to him in May 1975 and he was also advised that he would be treated as having withdrawn the purchase application if he took no action within eight days. P's lawyer advised him to send a holding letter and in October 1975 P applied to the expropriations judge to have the purchase price determined.

The judge ruled in March 1976 that he had no jurisdiction over the case because the land was no longer subject to the restrictions laid down in the development plan approved in 1969 and had not been purchased or expropriated within three years of the application. P then made a fresh application for planning permission in July 1976 which was again adjourned because a land-use plan being drawn up showed his property as needed for the crossroads improvement. An application for judicial review of this decision was lodged in November 1976. This was refused in January 1979 and the court held that he could not rely on the expropriation judge's ruling that his property was not subject to any reservation since the adjournment was based on the land-use plan and not the 1969 development plan. A fresh planning application was made in October 1978 and refused the following December. P successfully challenged this refusal in February 1980 and this was upheld on appeal by the conseil d'etat in May 1983. As a result P retrospectively had constructive planning permission from December 1978. Meanwhile the prefect had declared P's property liable to expropriation in February 1981 and an order was made the following month. Compensation for the expropriation was assessed in June 1981 and slightly increased on appeal in January 1982. P withdrew an appeal on points of law against the latter award in June 1982. The previous January he had applied for compensation for the damage resulting from actions by the authorities interfering with his building plans and this was refused in May 1982. He then brought an action for this purpose the following month and, after several rounds of pleadings and observations, judgment was given in P's favour in June 1986 only in respect of the expenditure for the planning application unlawfully withdrawn in December 1978. This ruling was upheld by the conseil d'etat in May 1990. A second set of compensation proceedings in respect of the losses sustained as a result of the planning and other decisions were brought by P in December 1990. His application was dismissed in November 1992 and this ruling was upheld on appeal in March 1995.

P complained about the restrictions imposed on his property and the slowness of the proceedings.

The Court held:
- that, from the adjournment of P's application in March 1965 until the final determination of the expropriation compensation by the appeal court judgment in January 1982, the scheme was an obstacle to the development of his property for which he had not been compensated;
- that this infringement of his right of property answered the needs of the general interest as it was designed to enable an urban development scheme to be carried out;
- that the various interferences with P's full enjoyment of his property did not in principle strike a fair balance between the demands of the community and the requirements of protecting an individual's fundamental rights but there was a remedy in requiring the land in question to be purchased by the public body for whose benefit it had been reserved within three years of the application;
- that, even if the authorities delayed in responding to his application to have his property purchased, the failure of the abandonment proceedings was attributable to him, his application to the expropriations judge was made out of time and he finally accepted the expropriation compensation awarded in January 1982;
- that, as the procedures provided in domestic law thus afforded a remedy sufficient to ensure protection of the right to the peaceful enjoyment of one's possessions, there was not a violation of Prot 1 Art 1.

Comment: The failure over the course of nearly three decades to reach any conclusive determination as to whether P's land would be used for the crossroads improvement is lamentable and not much more creditable if only half that period (during which Prot 1 was applicable) is taken into account. It is not surprising, therefore, that the Court followed the approach laid down in Sporrong and Lonnroth v Sweden (Ser A No 52) in finding that the interference with the enjoyment of P's property was, in principle, unacceptable. There can be little doubt that the abandonment procedure, whereby the public body could be required to purchase the land, had the potential to afford an effective remedy, provided that a fair purchase price was paid. The requirements of Prot 1 were clearly met by the establishment of a judicial procedure to determine this where the owner was dissatisfied with what was offered.

Raimondo v. Italy, Judgment of 22 February 1994, Series A no.281-A, p. 19
full case here

Raimondo was suspected of belonging to a mafia-type organisation. During the criminal proceedings the prosecutor obtained an order for the seizure of real property and of vehicles that appeared to be at Raimondo's disposal, with a view to their confiscation. This order was later amended to exclude property belonging to third parties but also to confiscate some real property and vehicles which had not been proven to be lawfully acquired. This confiscation was recorded in the register but did not actually transfer ownership to the public authorities as it had been challenged by Raimondo. The property seized or confiscated was later alleged by Raimondo to have been the target of extensive vandalism. Raimondo was also placed under special police supervision, requiring him to report to them on specified days, to inform them before leaving home and generally to be there between 9.00p.m. and 7.00a.m. A security of two million lire was required to guarantee compliance with these constraints which did not become effective until the day of his acquittal by the first instance court. In July 1986 an appeal court annulled the special supervision measure and ordered the restitution of the security and the property seized or confiscated. Raimondo was informed of the court's decision eighteen days after it was filed with the registry in December 1986 and it became final at the end of 1986. The revocation of the real property's seizure and all but one vehicle's confiscation was entered in the relevant registers and the security was returned in February and April 1987 respectively. The revocation regarding the remaining vehicle was registered in July 1987 and an application for the registration of revocation of the real property's confiscation was dated August 1991.

Raimondo complained about the seizure and confiscation of his possessions.

The Court held:
- that the seizure of Raimondo's property was a control over its use designed to ensure that the fruit of unlawful activities could subsequently be confiscated if necessary;
- that it was justified by the general interest and that the economic power of the mafia meant that its timing was not disproportionate to the aim pursued;
- that it was not, therefore, a violation of Prot 1 Art 1;
- that the confiscation of Raimondo's property up until the end of December 1986 was within Prot 1 Art 1's second paragraph as (a) it sought to ensure that the use of it did not procure for him, or the criminal organisation to which he was suspected of belonging, advantages to the detriment of the community, (b) it was proportionate to the aim pursued, particularly as it entailed no additional restrictions in relation to seizure and (c) its immediate application was justified by the preventive purpose notwithstanding any appeal;
- that any seizure or confiscation inevitably entails damage and, as Raimondo had not provided a sufficiently clear basis for examining whether that actually sustained by his property had exceeded such inevitable damage, there was no violation of Prot 1 Art 1 in this respect;
- that the confiscation of the vehicle and real property which continued until July 1987 and August 1991 respectively, despite the appeal court's order, was an interference with Raimondo's property that was not provided for by law nor necessary for its control in the general interest and there was, therefore, a violation of Prot 1 Art 1.

Comment: Although the sort of preventive measures taken here are not in principle problematic, they are only acceptable for the duration of the criminal proceedings on which they are based. The delay in restoring the property is, however, not surprising given the Court's findings in other cases about the administration of justice in Italy. The Court did not reject the idea that there is an obligation under Prot 1 Art 1 to look after property following its seizure or confiscation. Instead it laid down a criterion of inevitability for the determination of whether recompense must be made but this will need further clarification; there is obviously an inevitability in the damage effected to take control of premises but why should there be any inevitability about vandalism to them once they are within the jurisdiction of the police? Raimondo's claim seems to have failed for want of adequate evidence as to what damage was caused by vandalism.

Spadea and Sclabrino v. Italy, App. no. 00012868/87,
Judgment 28 September 1995.
full case here

Spadea and Scalabrino (the applicants) bought two flats with the aim of making their home there and gave the tenants living in them (who were elderly ladies of modest means who had asked the city council to allocate them low-rent flats) notice to quit when the leases expired. A magistrate formally confirmed the notices to quit and fixed 31 December 1984 as the date for eviction but, in accordance with a 1985 decree, enforcement was subsequently suspended until 31 January 1986. On three occasions in 1986 the applicants unsuccessfully attempted to get the tenants to leave and under a 1986 decree the enforcement of evictions was suspended until 31 March 1987. From then until 31 March 1988 police assistance to enforce evictions could be granted where the landlords had an urgent need to recover their property or were owed arrears of rent but then only by the prefect. During that period a bailiff made six unsuccessful attempts to enforce the orders for possession. The enforcement of evictions was again suspended until 30 April 1989 by two decrees adopted in 1988. The applicants were obliged to buy another flat in February 1988. One of the tenants died in August 1988 and the other left in February 1989. The decrees were prompted by the housing shortage in certain cities, the large number of leases expiring at the time and a concern to enable the tenants affected to find acceptable new homes or obtain subsidised housing. A previous housing policy had relied on freezing rents and extending the validity of leases. The decrees suspending evictions did not apply to non-residential property.

The Court held:
- that, as the implementation of the measures meant that the tenants continued to occupy the flats, it was a control over the use of property to which Prot 1 Art 1's second paragraph applied;
- that the decrees suspending the evictions had the legitimate aim of protecting the interests of tenants on low incomes and avoiding public disorder;
- that, having regard to the fact that (a) the only reason for the evictions was the expiry of the leases, (b) none of the exceptions to the suspension of enforcement were applicable and (c) the tenants had asked the city to allocate them low-rent flats, the decrees could not be considered disproportionate to aim pursued and there was no violation of Prot 1 Art 1;

Comment: This decision proceeded on the same basis as Scollo v Italy in judging the proportionality of the control being exercised over the applicants' property. However, in this case there were considered to be no personal circumstances to make their occupation of the properties a priority. The expense of buying another flat was not seen as a particularly important factor in balancing their interests against those of the community and the length of period involved was not addressed. As in Scollo there was no examination of the propriety of the State's apparent failure to tackle the underlying problem for several decades. Four years' delay in recovering possession seems an onerous contribution for an individual to make towards solving a community problem. Given that shortage was only concerned with housing, it would be hard to deny that there was a rational basis for the differential treatment of non-residential property.

Tsomtsos and others v. Greece judgment of 15.11.1996, ECHR Reports of Judgments and Decisions 1996-I
full case here

The applicants (Tsomtsos, 138 other persons and a district council) unsuccessfully sought the quashing of the expropriation of part of their properties for a road widening scheme and of a ministerial decree which had made a 1977 law on the obligations of adjoining owners where major roads are built apply to a road improvement scheme involving their properties. The latter law created a presumption that the owners of properties on major roads benefited when such roads are widened and that they had, therefore, to contribute to the cost of expropriation if they were expropriated. Under this law the owners were required to pay for an area fifteen meters wide where a major road of up to thirty meters was built in an area not covered by a town development plan. The applicants had submitted that (a) the scheme did not involve a major road, (b) the drop in value could not be calculated since the plan showed only the surface area to be expropriated and not the plots in their entirety or the parts of them not to be appropriated and (c) the widening involved would be detrimental to their properties. They maintained that it had led to a deterioration in housing conditions due to the raising of most of the sections of the road (which had become a road for fast traffic), that there was a lack of direct access from the properties to the major road with a need to travel to an interchange several kilometres away and that there was a tightening of the restrictions on the height of building. Some of the applications were held to be inadmissible by the supreme administrative court because they had not produced an authority to act enabling their lawyers to represent them and others were unfounded either because the designation of the scheme could not be reviewed or because complaints about the assessment of compensation were within the civil courts' jurisdiction.

A first instance court then assessed the provisional unit amount for compensation, noting that the properties were plots of farming land suitable for cultivation (and in some cases irrigated) and were not included in the development plan. It also noted that the plots could be built upon and that some of them had been illegally subdivided and sold to third parties who had built houses on them without planning permission. The court found that it was unable to consider whether and to what extent the adjoining owners had an obligation to contribute to the expropriation costs or what benefit they might derive in a given case. It held that the unexpropriated parcels whose plots did not exceed 750 sq m should be awarded special compensation because their value had decreased but that those above that size should receive no special compensation because they had not suffered any depreciation since neither the applicants nor the experts had proved that it had become impossible to build on them. The court ordered that compensation be paid to the applicants according to their share of the land and the nature of their title. Greece did not compensate the applicants for the fifteen metre area laid down in the 1977 law and the applicants did not bring an action in the civil courts for payment of the compensation. The full cassation court subsequently ruled that the presumption in the 1977 law was irrebuttable.

The Court held:
- that, as the applicants had strong arguments to put forward about the construction of the road leading to a drop in the value of the properties and to a deterioration in housing conditions, they had to bear an individual and excessive burden which could have been rendered legitimate only if they had had the possibility of proving their alleged loss and, where appropriate, receiving commensurate compensation;
- that it was not necessary at this stage to determine whether the applicants were in fact prejudiced since it was in their legal situation itself that the requisite balance was no longer to be found;
- that there was, therefore, a violation of Prot 1 Art 1.

Comment: In both these cases the land concerned was clearly being taken for a purpose compatible with Prot 1 Art 1 and the only issues raised related to the compensation. Although some interferences with the use of property will not require compensation to be paid, it would be an extremely unusual case for no compensation to be payable in respect of an expropriation. The difficulty in this case was not the refusal to pay any but the basis of its calculation. The Court did not contest the assumption that the construction of a road could benefit the adjacent landowners who are required to make some of their land available for this purpose but the interpretation given to the Greek law in question was such that this was irrebuttable. This meant that the actual impact of the road was not considered and it was clear that this was detrimental in Katikaridis and there were arguments to put to this effect in Tsomtsos. This meant that, when balancing the individual and collective interests, landowners were understandably regarded as being required to bear an excessive burden. There would be no problem of compatibility with Prot 1 Art 1 if there was a presumption about consequential benefits from a road that could be disputed through a fair procedure.

Vasilescu v. Romania (53/1997/837/1043), Decision of 22nd May 1998 (see full decision: Vasilescu v. Romania)
full case here

Vasilescu's house was searched in June 1966 by police officers without a warrant in connection with an investigation in respect of her husband for unlawful possession of valuables, which at the time was an offence. 327 gold coins, mostly pierced for use in jewellery and two of which had been made into earrings, were seized. Eleven days later these items were deposited at a branch of the national bank and this fact was officially recorded. Four days after that it was decided not to press charges against Vasilescu's husband and the investigation was discontinued, the police concluding that the offence committed in the case was not likely to constitute a threat to society but that items in question should be kept.

After an enquiry about what had happened to the property, the county state counsel informed Vasilescu in May 1990 that there was nothing in its archives at the first instance court which made it possible to establish that an investigative measure of that kind had been ordered in the case. Vasilescu subsequently lodged an application for restitution with the procurator-general and in October 1990 he replied that no seizure order or search warrant had been issued in respect of her or her husband, either in 1966 or thereafter. At an unspecified date in 1991 the interior ministry confirmed to Vasilescu that an investigative measure had indeed been ordered in 1966 in respect of the property she was claiming and that subsequently charges against her husband had been dropped. It stated that the seizure had been kept in force by the state counsel at the first instance court. In 1991 Vasilescu brought an action for recovery of possession of forty gold coins that had been made into a necklace and a pair of earrings against the national bank, with which they had been deposited. She argued, relying on the procurator-general's 1990 reply, that these items had been unlawfully confiscated by the police without any order from a competent judicial authority. In February 1992 the first instance court, basing its decision on the witness evidence gathered and documents in the case file, found for Vasilescu and ordered the bank to return the items claimed. It also found that the police had seized, in all, 327 gold coins belonging to Vasilescu. The bank's appeal was dismissed by the county court in October 1992 which found that there had been a decision not to prosecute and that, at all events, there was no statutory provision prohibiting Vasilescu from recovering possession of the items in issue.

In 1993 Vasilescu, considering that she was entitled to have returned to her all the items kept by the police, requested the procurator-general to lodge with the supreme court a special appeal against the February 1992 judgment. However, in June 1993 he informed Vasilescu that he did not intend to grant that request as the judgment was lawful and well-founded. Two months later he informed V that she could avail herself of a new appeal created by a 1993 amendment to the civil procedure code if she were not satisfied with the decisions in her case. As a consequence both Vasilescu and the bank appealed against the February 1992 judgment, the former seeking the return of all the coins and the latter seeking to have the earlier decisions quashed. The bank argued that the courts had no jurisdiction to rule in the case as, under the criminal procedure code, all complaints about investigative measures came within the state counsel's exclusive competence. In February 1994 the appeal court dismissed both appeals, holding that (a) Vasilescu, having initially only claimed forty gold coins and a pair of gold ear-rings, could not amend the claim on appeal and (b) the courts below had been right to order that the gold objects be returned as there had been no basis in law for the retention of the gold objects and that judgment had become final.

In 1994 the procurator-general applied to the supreme court under the civil procedure code to have the judgments of February and October 1992 and February 1994 quashed. He applied for the case to be transferred to the appropriate authority, reiterating that the civil courts, in trying the case in question, had exceeded their jurisdiction ratione materiae and encroached upon the state counsel's exclusive competence in the matter. Vasilescu complained of a breach of the constitutional guarantee of free access to the courts. In October 1994 the supreme court allowed the procurator-general's application and quashed all the judgments concerned, holding that under the criminal procedure code the state counsel had sole jurisdiction to entertain Vasilescu's application for return of the items in issue.

The Court held:
- that it was common ground that the search and seizure in July 1966 was unlawful and that Vasilescu was the owner of the property in question;
- that, for the purposes of Prot 1 Art 1, Vasilescu- who had been deprived of the use and enjoyment of the relevant property since 1966 - had nonetheless remained its owner up to the present day;
- that, although Romania did not recognise the right of individual petition and the Court's jurisdiction until June 1994, Vasilescu's complaint related to a continuing situation and in any event the supreme court delivered its judgment after June 1994;
- that, in view of the lack of any basis in law - as recognised by both the domestic courts and Romania - the continuing retention of the items in question could not be interpreted as a deprivation of possessions or control of the use of property allowed by Prot 1 Art 1's first and second paragraphs;
- that the loss of all ability to dispose of the property in issue, taken together with the failure of the attempts made so far to have the situation remedied, had entailed sufficiently serious consequences for it to be held that Vasilescu had been the victim of a de facto confiscation incompatible with her right to the peaceful enjoyment of her possessions and there was thus a violation of Prot 1 Art 1;

Comment: The rulings in this case followed well-established case law as regards the treatment of an illegal taking of property where remedies for its recovery are ineffective (Papamichalopoulos v Greece, (1995) and Loizidou v Turkey (Merits), (1997)). There was, therefore, nothing surprising in the finding of a violation, notwithstanding that the initial deprivation of property occurred before Romania became bound by the ECHR. As in Papamichalopoulos, the Court considered that restitution was the most appropriate remedy but, as this is not one within its competence, Vasilescu had to be satisfied with an award of compensation. It is regrettable that the Court relied on equitable principles in making this award as the coins and jewellery were undoubtedly susceptible to expert valuation and there is no guidance as to why a figure which neither V nor Romania suggested was used.

Vendittelli v. Italy judgment of 18 July 1994, Series A no. 293-A, p. 13
full case here

Vendittelli's flat was sealed by the police in May 1986 for infringing town-planning regulations. The sequestration was confirmed by a magistrate the following day and criminal proceedings were instituted against him. Three applications between then and June 1987 to secure the release of Vendittelli's property were dismissed in order to prevent aggravation of the alleged offence and to preserve evidence. Although Vendittelli sought an early hearing, the trial was eventually postponed from November to December 1987. Vendittelli, who was present at the judgment's delivery, was given a suspended prison sentence and a fine for having carried out works in his flat without a permit from the mayor. He was not formally notified of the judgment for almost a year but appealed within three days of its delivery and the hearing began in May 1989. It was adjourned at Vendittelli's request in January 1990 because his doctor had ordered him to rest and in March 1990 because his lawyer was unable to attend. The appeal court's judgment, which was given in July 1990 and became final in October 1990, held that the offence had become amnestied and the prosecution barred as a result of a presidential decree but did not order the release of the property from sequestration. Vendittelli was not notified of the judgment but obtained a copy from the registry in December 1990, after which he again applied to the appeal court for the release of his flat. The file was sent to the magistrate for execution of the judgment who held that he had no jurisdiction and ordered it to be returned to the appeal court in January 1991. An order allowing Vendittelli's application was sent to the town hall in May 1991 and served on him the following month. In the meantime the mayor had issued him with a permit.

The Court held:
- that the second paragraph of Prot 1 Art 1 was applicable to the sequestration as its object was not to deprive Vendittelli of his property but to prevent him from using it;
- that the sequestration had the legitimate aim of preserving the evidence of the offence and preventing any aggravation of it;
- that, allowing until the end of October 1990 for the prosecution to appeal on points of law, the release of the property should then have been ordered without waiting for Vendittelli to raise the issue as the considerations justifying sequestration ceased to exist thereafter;
- that its continuation from then until May 1991 had placed a disproportionate burden on Vendittelli and there was, therefore, a violation of Prot 1 Art 1.

Comment: As in Raimondo v Italy, Vendittelli succeeded because the sequestration went on for too long but surprisingly the legitimacy of the measure itself was not questioned. It certainly appears a disproportionate one when a civil injunction could have prevented any further possible wrongdoing without the need to dispossess him. The fact that a permit for the alterations was also ultimately granted suggests that the measures taken against him were precipitate.

Zubani v. Italy judgment of 7 August 1996,
Reports of Judgments and Decisions 1996-IV
full case here

The applicants, three sisters and a brother, owned a farmhouse and land used for agricultural purposes which had been made subject to an order, under an expedited procedure, for possession for the construction of low-cost housing. The municipality took possession of their land in July 1980 and the regional council issued an expropriation order in October 1981.

Although a civil action for restitution of the applicants' land had been upheld on an interim basis in January 1981, this ruling was reversed in March 1983 because of the expropriation order. Nevertheless the court did find the taking of possession of the applicants' land to be unlawful and ordered the municipality to pay them compensation. This ruling was upheld on appeal. Separate proceedings for judicial review of the possession order had been brought by the applicants in August 1979 and further actions contesting the occupation of the land and the expropriation order were begun in July 1980 and October 1981 respectively. These proceedings were joined and all the measures were quashed in June 1984 but the administrative court held that the issue of the lawfulness of the taking of possession of the land was a matter for the civil courts. This ruling was upheld in November 1985 by the consiglio di stato and in July 1986 it ordered the land on which no buildings had been constructed to be returned to the applicants within thirty days. However, the consiglio found that it had no jurisdiction over the remaining land as this had been transferred to two building cooperatives and referred the applicants to the civil courts. The municipality did not comply with the consiglio's order and in March 1987 a district court found a notice seeking compliance to be invalid but awarded the applicants compensation for damage and the restitution of the land. On the municipality's appeal, the court ruled in November 1988 that it was bound by a law that had just come into force which required that property on which public work had been carried out, making restoration to its owner impossible, should be compulsorily transferred to the public authorities with payment of full compensation. The cassation court dismissed the applicants' appeal in November 1989 and a constitutional challenge to the law was dismissed in July 1990. A district court in April 1995 awarded them ITL 599,605,830 compensation and ITL 22.3 million for legal fees and expenses. Part of this (including statutory interest) was paid the following November and the remainder was secured by attachment of the municipality's bank account in January 1996.

The Court held:
- that there had been a deprivation of property in the public interest;
- that the legislature might reasonably choose to give preference to the community's interests in cases of unlawful expropriation or occupation of land as full compensation for the damage sustained by the proprietors concerned constituted sufficient reparation where the authorities were required to pay an additional sum corresponding to monetary depreciation since the day of the unlawful action;
- that the litigation concerning the applicants' property had already lasted eight years when the 1988 law entered into force and the municipality now appeared reluctant to pay the whole of the sums awarded by the district court despite (a) agreeing to do so in 1995 and (b) refusing to ask the audit court to determine the administrative responsibility for the loss thereby incurred for its budget;
- that the size of the sum awarded by the district court could not be decisive in view of the length of the proceedings instituted by the applicants;
- that, although that sum might appear enormous in relation to the surface area actually occupied by the buildings, a new road was laid through the applicants' property which rendered access to the plots returned to them difficult;
- that, as a fair balance had not been struck between the right of property and the demands of the general interest, there was a violation of Prot 1 Art 1.

Comment: The ECHR and the Court recognise that property interests have to yield to the collective interest and that the payment of compensation can achieve a fair reconciliation of the competing interests. However, although it may be a reflection of realities that the restoration of property occupied by public authorities may not be achievable, its acceptance here as a legitimate approach does undermine the efficacy of the rule of law; if public authorities are willing to pay the price then there is really no obstacle to disregarding the law's requirements. This approach was also seen in Papamichalopoulos v Greece ((1995)). It may be that restoration is really impractical but the guarantee of the right to property could easily become meaningless without recognition of an obligation to take, at the very least, disciplinary action against the officials directly involved. It is at least encouraging that the Court is not prepared to allow the size of the domestic award of compensation to be conclusive and was rightly concerned about the difficulty of gaining access to the land which had actually been returned to the applicants.

II. Inter-American Court and Commission
summary of jurisprudence

In a series of cases involving property destruction in Guatemala, the Commission found repeatedly that Guatemala had violated article 21 of the American Convention which recognizes the right to property.

The petition, dated 7 April 1990, alleged that, on 13 March 1990, soldiers of the Guatemalan Army arrived in Chajul, in the Department of El Quiché, where they proceeded to persecute members of the community, and destroy 35 houses, a religious centre and agricultural lands. (See Report Nº 40/00, Case 10.588 Isabela Velásquez and Francisco Velásquez, CASE 10.608 Ronal Homero Mota et al., Case 10.796 Eleodoro Polanco Arévalo, CASE 10.856 Adolfo René and Luis Pacheco Del Cid, and Case 10.921 Nicolás Matoj et al., vs. Guatemala (13 April 2000)). The full text of the Commission's decision is available here.

These cases against Guatemala are typical of the way that property claims have tended to come before the Commission. However, most of the time, while the property damage and destruction to homes was included in the context of the petition, petitioners did not allege a violation of Article 21 of the Convention, therefore the Commission did not consider the violations of the right to property, nor did it order specific compensation in this regard.

Comadres, Case 10.948, Report No. 13/96, Inter-Am.C.H.R., OEA/Ser.L/V/II.91 Doc. 7 at 101 (1996).
full case here

The applicants stated that in July 1980, a bomb damaged windows and doors of the COMADRES (a human rights non-governmental organisation) headquarters, and that on 12 June 1985, Government security forces entered the COMADRES headquarters and removed selected information on human rights violation cases, including photographs and names of persons connected with those cases.

The Commission found that as to the entry into and the pillaging of the COMMADRES offices on 12 June 1985, the Commission found that there was a violation of the right to property (Article 21). It also found a violation to the right to property regarding the attack with explosives.

Saint-Julien Charles, Case 3519, Inter-Am. C.H.R. 89, OEA/ser. L/V/II.61, doc. 22 rev. 1 (1982) (Annual Report 1982-1983).
full case here

The applicants claimed that the Government forces in Haiti arrested Saint-Julien Charles, a former mayor of Fort-Liberte, and imprisoned him without charging him of any crime or giving him a trial. In addition, people claiming to be law enforcement agents also ransacked his office.

The Commission concluded that the Government of Haiti had violated Article 21 of the American Convention on Human Rights regarding the ransacking of the office.

Leon Thebaud, Case 3405, Inter-Am. C.H.R. 46, OEA/ser. L/V/II.63, doc. 10 (1983) (Annual Report 1983-1984).
full case here

Leon Thebaud, a lawyer, was arbitrarily arrested at his residence and his home was ransacked, his library was looted, and his office, including all client files, was destroyed and pillaged.

The Commission determined that the Government of Haiti had violated Article 21 of the American Convention on Human Rights.

Carlos Martinez Riguero, Case 7788, Inter-Am. C.H.R. 89, OEA/ser. L/V/II.71, doc. 9 rev. 1 (1987) (Annual Report 1986-1987).
full case here

The Government of Nicaragua confiscated dividends earned on shares owned by Martinez Riguero in the Espresa Cereales de Centroamerica S.A. (CERSA), and nationalized his quarry without honouring pecuniary obligations arising out of those measures.

The Commission resolved that the Government of Nicaragua had violated Article 21 of the American Convention on Human Rights.

Haydee A. de Marin et al., Case 10.770, Inter-Am. C.H.R. 293, OEA/ser. L/V/II.85, doc. 9 rev. (1994) (Annual Report 1993).
full case here

The Inter-American Commission received a complaint stating that the National Reconstruction Governing Junta had in 1979 denied Haydee A. de Marin, Leonor Marin Arcia, Orlando Marin Arcia, and Maria Haydee Marin Arcia their rights to possess, own, and use their private properties in Nicaragua, even though there was no decree ordering confiscation of the property.

According to the facts alleged in the case, in 1979 the National Reconstruction Governing Junta attached the properties of the Marín family, without any form of notification or public utility claim. Moreover, there was no decree of confiscation on those properties at the time, as the Marín family had neither ties with the Somocista Liberal Party nor business or family relations with the Somoza family. On 20 July 1979, the Governing Junta issued Decree No. 3, which authorized the Attorney General to attach, requisition and confiscate all property belonging to the Somoza family and to the military officers and government officials who had left the country since December 1977. A later decree, No. 38 of 8 August 1979, expanded the Government's powers so that it could freeze or attach any transaction, property or business belonging to persons alleged to be Somocistas.

In December 1990, after a change of government, the Marín family filed a formal complaint with the Office of the Attorney General - the only authority to which it could resort at that time. The petition filed by the complainants was based on the fact that they were not among those whose properties were, by decree, to be confiscated and that their assets had been attached and requisitioned outright, without any form of notification.

The Commission concluded that the Government of Nicaragua had violated Article 21of the American Convention on Human Rights. The Commission also concluded "that Nicaragua, a State Party of the American Convention, has failed to fulfil its duty to respect the rights upheld therein by depriving the petitioners of their property without any form of compensation or for no reason of public utility." The Commission also held that "the right to own property can be regarded as an inalienable right; no State, group or person must undertake or conduct activities to suppress the rights upheld in those international instruments [the Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man], including the right to own property." Further, the Commission recommended that the Government of Nicaragua return the properties to their legitimate owners, and that the Government of Nicaragua pay the injured parties the amounts owed in damages and compensation for the time the properties in question were held in usufruct.

Shareholders of Banco de Lima, Case 10.169, Inter-Am. C.H.R. 423, OEA/ser. L/V/II.79, doc. 12 rev. 1 (1991) (Annual Report 1990-1991).
full case here

The President of Peru announced a plan to expropriate all of the shares of the Peruvian banks remaining in private hands.

The Commission found that the shareholders asserted the collective property rights of the company and not their individual property rights. The Commission found that it had no jurisdiction, under Article 21 of the American Convention on Human Rights, over the rights of juridical beings, such as banks.

The Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua Judgment of August 31, 2001
full case here

In this case, the Mayagna (Sumo) Awas Tingni Indigenous Community of the Atlantic Coast of Nicaragua secured recognition of its rights to its ancestral lands. This case establishes a historical precedent at the international level that recognizes the communal property rights of indigenous peoples.

The Awas Tingni Community, an indigenous group, traditionally lived in a Region of the Atlantic Coast of Nicaragua. In Nicaragua, among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, had been given the right to live freely in their own territory by Nicaragua's legal system recognizing that the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.

Indeed, Nicaragua's legal system recognizes communal property of indigenous peoples, Law No. 28, which regulates the Autonomy Statute of the Regions of the Atlantic Coast of Nicaragua, states in article 36 that:

Communal property are the lands, waters, and forests that have traditionally belonged to the Communities of the Atlantic Coast, and they are subject to the following provisions:
1. Communal lands are inalienable; they cannot be donated, sold, encumbered nor mortgaged, and they are inextinguishable.
2. The inhabitants of the Communities have the right to cultivate plots on communal property and to the usufruct of goods obtained from the work carried out.

However, there is no further regulations establishing the specific procedure to materialize that recognition, and therefore no such title deeds have been granted since 1990. Furthermore, in the instant case the State has not objected to the claim of the Awas Tingni Community to be declared owner, even though the extent of the area claimed is disputed. Thus, the State has neither demarcated nor titled the indigenous lands of the Awas Tingni Community nor has it taken other effective measures to ensure the property rights of the Community to its ancestral lands and natural resources and the National Commission for the Demarcation of the Lands of the Indigenous Communities of the Atlantic Coast, created for the purpose of preparing a "Demarcation Project", has not contributed to establishing a mechanism for demarcation of the lands of indigenous peoples with their full participation.

Instead, the State granted the SOLCARSA corporation a logging concession on the lands traditionally occupied by the Community. The concession granted to the SOLCARSA corporation endangered the economic interests, survival, and cultural integrity of the Community and its members. "[T]he logging operations of SOLCARSA […], on lands used and occupied by the Awas Tingni Community, specifically, may have damaged thus Community's forests".

This was done in contravention of article 181 of the Constitution of Nicaragua which refers to the approval of concessions by the State to lands belonging to the State, not to the utilization of resources on communal lands. That article does not authorize MARENA and the Regional Council of the RAAN to authorize logging on private or communal lands without the owner's authorization.

Considerations of the Court:

The Court had the opinion that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua.

According to the Court, Indigenous peoples' customary law must be especially taken into account for the purpose of this analysis. As a result of customary practices, possession of the land should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration. (para. 151)

As to the concept of property in indigenous communities the Court held that among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.

It then held that Indigenous peoples' customary law must be especially taken into account for the purpose of this analysis. As a result of customary practices, possession of the land should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration. Further, the Court held that pursuant to article 5 of the Constitution of Nicaragua, the members of the Awas Tingni Community have a communal property right to the lands they currently inhabit, without detriment to the rights of other indigenous communities.

Nevertheless, the Court noted that the limits of the territory on which that property right exists have not been effectively delimited and demarcated by the State. This situation has created a climate of constant uncertainty among the members of the Awas Tingni Community, insofar as they do not know for certain how far their communal property extends geographically and, therefore, they do not know until where they can freely use and enjoy their respective property. Based on this understanding, the Court considered that the members of the Awas Tingni Community have the right that the State:
a) carry out the delimitation, demarcation, and titling of the territory belonging to the Community; and
b) abstain from carrying out, until that delimitation, demarcation, and titling have been done, actions that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographical area where the members of the Community live and carry out their activities.

The Court concluded that the right of the members of the Mayagna Awas Tingni Community to the use and enjoyment of their property as contained in article 21 of the American Convention had been violated since the concessions granted to third parties to utilize the property and resources located in an area which could correspond, fully or in part, to the lands which must be delimited, demarcated, and titled.

Comment: Thus, the Court found that the members of the Awas Tingni Community are entitled to have the State delimit and issue titles to the Community's lands, and that the State must refrain from actions that would affect lands where members of the Community live and conduct their activities. The Court stated that: "This situation [the lack of demarcation] has generated a persistent climate of uncertainty among the Awas Tingni Community. They do not know for sure where their communal property rights end in a geographic sense. Therefore, they do not know to what extent they can use and freely enjoy their assets."

Series C: Decisions and Judgments No. 74 IVCHER BRONSTEIN CASE (Baruch Ivcher Bronstein vs. Peru) JUDGMENT OF FEBRUARY 6,2001.
full case here

Mr. Ivcher's owned shares in Channel 2, a telecommunications media Company representing 49,53% of the capital in 1986. By 1992, his participation amounted to 53,95%, and he was therefore the Company's majority shareholder. Obviously, this participation in the share capital could be evaluated and formed part of its owner's patrimony from the moment of its acquisition; as such, that participation constituted a property over which Mr. Ivcher had the right to use and enjoyment.

In July 1997, Mr. Ivcher's nationality title was annulled. Based on this act and, pursuant to the legislation that required that owners of telecommunications media companies should be of Peruvian nationality, in August 1997, Judge Percy Escobar: a) ordered a precautionary measure that suspended the exercise of Mr. Ivcher's rights as majority shareholder and chairman of the Company and revoked his appointment as a director the Company; b) ordered that an extraordinary general meeting of the shareholders of the Company should be judicially convened in order to elect a new board and prevent the transfer of Mr. Ivcher's shares, and c) granted the minority shareholders provisional administration of the Company until a new board was appointed.

The Commission first stated that the right to property as embodied in Article 21 of the Convention, guarantees the free exercise of the attributes of this, understood to be the right to dispose of it in any legal way, possess it, use it and prevent any other person interfering in the enjoyment of that right. It held that the right to property includes all of a person's patrimonial rights, that is, those that affect both tangible and intangible property of any value.

The Commission then held that although Mr. Ivcher was not formally deprived of his right to the property of the shares of the Company, in practice, the rights that conferred the ownership of the actions on him were suspended through judicial decisions and, therefore, he was arbitrarily deprived of the exercise of the fundamental rights that such ownership implied; for a shareholder of a commercial company, the right to sell his shares and to participate in company decisions by exercising his vote at shareholders' meetings, and also to receive legally and statutorily agreed dividends, are fundamental attributes of the right to property; the Peruvian authorities have not only prevented Mr. Ivcher from exercising the ownership of the shares, but also his wife, whose nationality was not in discussion; the decision to deprive Mr. Ivcher of his nationality and, subsequently, to prevent him and his family from exercising their rights to property, are the result of the deliberate effort to suppress his freedom of expression; and the minority shareholders, exceeding the administrative authority of the Company, proceeded to increase its share capital in secret, without consulting Mr. Ivcher and without the quorum established in the Company's by-laws; in this way, they intended to become the owners of 60% of the shares of the Company, so that they could take any decision without requiring the agreement of Mr. Ivcher, who became a minority shareholder.

The Court reminded that "Property" may be defined as those material objects that may be appropriated, and also any right that may form part of a person's patrimony; this concept includes all movable and immovable property, corporal and non-corporal elements, and any other intangible object of any value.

The Court noted that the consequences of the precautionary measure ordered were immediate and evident: they prevented Mr. Ivcher Bronstein from acting as director and chairman of the Company, so that he could not continue directing the editorial line of Channel 2; he was also deprived of the possibility of taking part in board meetings, where the minority shareholders took important decisions, such as removing the members of the board, including Mr. Ivcher, appointing new members and even increasing theCompany's capital; finally, he could not transfer his shares, receive dividends from them and exercise the other rights that corresponded to him as a shareholder of the Company.

It then reminded the jurisprudence of the International Court of Justice which has made a distinction between the rights of a company's shareholders from those of the company itself, indicating that domestic legislation grants shareholders specific direct rights, such as receiving the agreed dividends, attending and voting at general meetings and receiving part of the assets of the company when selling their shares. It observed that the said precautionary measure obstructed Mr. Ivcher's use and enjoyment of such rights; also, when his wife, as co-owner of her husband's shares, tried to enforce those rights, the measures she took were ineffective.
Consequently, the Court concluded that Mr. Ivcher was deprived of his property, in violation of the provisions of Article 21.2 of the Convention.

The Court reasoned that in order for the deprivation of the property of a person to be compatible with the right to property embodied in the Convention, it should be based on reasons of public utility or social interest, subject to the payment of just compensation, and be restricted to the cases and according to the forms established by law. It stated that there was no evidence that the precautionary measure order was based on reasons of public utility or social interest but it seemed to flow from the "State's determination to deprive Mr. Ivcher of the control of Channel 2, by suspending his rights as a shareholder of the Company that owned it".

As to the requirements of the payment of just compensation, and the legal certainty principle the Court held that there was no indication that Mr. Ivcher had been compensated for the deprivation of the enjoyment and use of his property, or that the measure that affected him was adopted according to the law. It must also be recalled that, in this judgment, the Court has concluded that the procedures relating to the restriction of Mr. Ivcher's rights with regard to the Company, including the procedure related to the precautionary measure, did not satisfy the minimum requirements of due legal process and therefore the Court noted that when a procedure is conducted in violation of the law, the corresponding legal consequences should also be considered illegal.

III. UN Human Rights Committee:

K. J. L. v. Finland, UN Human Rights Committee Communication No. 544/1993, (decision adopted on 3 November 1993, forty-ninth session).
full case here

L was required by a road construction permit to cede part of his land for the construction of a private road and considered that he only received a fraction of the compensation lawfully due to him. A legal challenge to the permit was unsuccessful and L contended that the judicial proceedings were biased and unfair. L complained about discrimination, a denial of a fair hearing and interference with privacy.

The Committee held: that, as the right to property was not protected by the ICCPR, L's allegations concerning the unlawfulness of the road construction through his land were inadmissible ratione materiae under OP Art 3.

Comment: This reveals an important lacuna in the protection afforded by the ICCPR as compared with the ECHR Prot 1 Art 1.

IV. Human Rights Chamber for Bosnia and Herzegovina case law

CH/00/4116, CH/00/4117, CH/00/4077 and CH/00/4115, Bisera SPAHALIC, Mustafa SPAHALIC, Avdo TOSKIC and Adil U[ANOVIC against Bosnia and Herzegovina and Republika Srpska, 7 September 2001

These cases concern the attempts of the applicants, who are displaced persons of Bosniak descent, to regain possession of their property in Brcko. Pursuant to Annex 2 to the Dayton Peace Agreement, the question of control over Brcko was left open for later international arbitration. Annex 2 further stipulated that, in the meantime, and unless otherwise agreed, the area would continue to be administered as it had been at the time the Dayton Peace Agreement was signed. Each applicant has been trying to regain property that is situated in the northeastern part of the Brcko District that was under the control of the Republika Srpska at the time that the Dayton Peace Agreement was signed.

All of the applicants initiated administrative proceedings before the Republika Srpska authorities to regain possession of their homes in 1999. In the case of three applicants, no response was received from the Republika Srpska authorities; one of these applicants was reinstated into his apartment by the Brcko District in 2000. The remaining applicant was reinstated into his apartment by the Ministry for Refugees and Displaced Persons of the Republika Srpska in 2000.

On 5 March 1999 the Arbitral Tribunal, established under the Dayton Peace Agreement, issued its final award, establishing that Brcko shall be a "self-governing neutral district" under the sovereignty of Bosnia and Herzegovina. The Statute of Brcko, the instrument implementing the Arbitral Award, was adopted on 8 March 2000. On 19 September 2000 a Memorandum of Understanding setting out the responsibilities of the new Department of Urbanism of the Brcko District was signed between the Entities. The Brcko District Judiciary was established on 1 April 2001.

As for the Republika Srpska, the Chamber found that, given its examination of the case under Article 8, the Republika Srpska had violated the rights of the applicants to peaceful enjoyment of their possessions for as long as it was competent to handle these matters, namely until 19 September 2000. As for Bosnia and Herzegovina, the Chamber found that the failure of the authorities to act in accordance with the laws in force at the time of the alleged violations in the cases of the two applicants who were unable to repossess their homes was an unjustifiable interference with the applicants' right to peaceful enjoyment of their possessions in relation to the period after 19 September 2000. The Chamber found no interference in the cases of the applicants who were able to repossess their homes that could be attributed to Bosnia and Herzegovina.

CH/00/4889 The Islamic Community in Bosnia and Herzegovina against the Republika Srpska, 12 October 2001.

During the period of 1996 through 2000, the Institute for Treatment of Mentally Retarded Persons ("Institute") in Garevac in the Modri~a Municipality buried the remains of deceased non-Muslim patients from the Institute in the Muslim Cemetery in Vukosavlje-Jake{, which is situated on land owned by the Islamic Community in Bosnia and Herzegovina. The Institute also allegedly removed the remains of deceased Muslims previously buried in the Cemetery.

First, the Chamber examined Article 1 of Protocol No. 1 in isolation. The Chamber found that the burial of non-Muslim patients in the Jake{ Cemetery without the consent of the Islamic Community was an interference with the Islamic Community's right to peaceful enjoyment of its possessions as guaranteed by Article 1 of Protocol No. 1. Since this interference was not lawful, the Chamber found a violation of Article 1 of Protocol No. 1 in isolation.

Second, the Chamber examined Article 1 of Protocol No. 1 in connection with discrimination. For the same reasons discussed with respect to discrimination in connection with Article 9, the Chamber found that there was insufficient evidence for it to find differential treatment in the respondent Party's interference with the Islamic Community's property rights in the Jake{ Cemetery. Accordingly, the Chamber did not find that the respondent Party had discriminated against the Islamic Community with respect to its right to peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1.

CH/00/5408 Mina SALIHAGIC Against the Federation of Bosnia and Herzegovina, 11 May 2001.

In 1986 the applicant obtained the occupancy right over an apartment ("first apartment") in Tesanj, which was allocated to her by her employer. Later, the applicant moved from the first apartment into another apartment ("second apartment") in Tesanj. In 1993 the applicant submitted a request to the owner of both apartments to transfer her occupancy right from the first to the second, which had been declared abandoned. On 2 February 1998 the applicant's employer allocated the second apartment to her and, on 3 February 1998, the Municipal Department for Urban Planning and Housing Affairs of the Municipality Tesanj ("Municipal Department") confirmed the applicant's right to use it. On 17 February 2000 the applicant concluded a purchase contract with her employer over the second apartment, and the applicant's ownership of the second apartment was registered in the land books.

On 4 October 1999, the applicant had lodged a request to repossess the first apartment. On 20 June 2000, the Municipal Department issued a procedural decision allowing the applicant's re-instatement into that apartment. On the same day, the Municipal Department also issued a decision annulling its previous decision of 16 February 2000 and terminating the applicant's right to temporary use of the second apartment. The applicant lodged an appeal against this decision on 30 June 2000. On 10 July 2000 the Municipal Department issued a decision allowing the eviction of the applicant from the second apartment. The Chamber issued an order for provisional measures prohibiting the eviction and the applicant, in fact, was not evicted. On 26 March 2001, the Ministry for Urban Planning, Transport, Communication and Environment of Zenica-Doboj Canton rejected the applicant's appeal of the annulment of the Municipal Department decision of 20 June 2000 on the use of the second apartment.

The Chamber noted that, whether or not the purchase of the second apartment was in accordance with the law, the applicant was the registered owner of the second apartment and was entitled as a matter of Federation law to exercise the registered ownership rights. As no emergency situation could have justified the eviction of the registered owner, and that there was no other person seeking her eviction or claiming ownership rights to the second apartment, no provision in the domestic law could be regarded as a basis for the eviction. In addition, as the applicant had vacated the first apartment long before, she could not any longer be considered as a multiple user. Thus the Chamber found that the attempted eviction of the applicant was contrary to the law and that there was a violation of the applicant's right to peaceful enjoyment of her possessions as guaranteed by Article 1 of Protocol No. 1.

CH/96/17 Mehmed BLENTIC against The Republika Srpska,
3 December 1997.

The applicant, a citizen of Bosnia and Herzegovina of Bosniak descent, and his wife were forcibly evicted from their privately owned house in Banja Luka, by a Mr. D.V., a Serb refugee, in September 1995. The applicant instituted proceedings before the Court of First Instance in Banja Luka, which ordered the eviction of Mr. D.V. Several attempts were made to execute the Court's decision but without results because the police did not take any action to assist court officials.

Noting that the obligation effectively to secure respect for a person's home implies that there must be effective machinery for protecting it against unlawful interference of the kind which the applicant has suffered, the Chamber found that the police of the respondent Party gave no assistance to court officials in repeated attempts to enforce the order of the court for the eviction of the unlawful occupant and tolerated repeated obstruction of the officials in the execution of their duty. Furthermore no attempt was made to prosecute those responsible for obstructing the execution of the order of the court, although this would have been possible under domestic law. Thus there was a violation of Article 8.

The Chamber found, for the same reasons as given in the context of its examination of the case under Article 8, that the failure of the authorities to take the necessary measures to enforce the court order obtained by the applicant involved a failure effectively to secure his right to peaceful enjoyment of his possessions, and thus that there was a violation of Article 1 of Protocol No. 1.

CH/96/27 Rifat BEJDIC against the Republika Srpska, 14 January 1998.
full case here

The applicant is a citizen of Bosnia and Herzegovina of Bosniak descent and the owner of a house in Banja Luka. The applicant occupies the ground floor of the house, and the applicant's son and his family once occupied the first floor. In August 1995 the applicant's son and his family were forcibly evicted from the first floor of the house by a Mr. B.S. The applicant instituted proceedings before the Court of First Instance in Banja Luka, which issued a judgment ordering Mr. B.S. to transfer the first floor apartment into the possession of the applicant within fifteen days under threat of enforced performance. Mr. B.S. appealed the judgment to the Court of Appeal in Banja Luka, which refused the appeal. On 3 May 1996 the Court of First Instance issued a decision on execution requiring Mr. B.S. to return possession of the apartment at once to the applicant, but Mr. B.S. did not comply. Several attempts were made to execute the decision but without results, as the police did not take any action to assist court officials.

On 23 September 1996 the Commission for the Accommodation of Refugees and Administration of Abandoned Property ("Commission") issued a decision allocating the apartment to Mr. B.S. for temporary use under the Law on the Use of Abandoned Property ("Law"). On 3 October 1996 the applicant appealed the decision of the Commission to the Ministry of Refugees and Displaced Persons. At the time of the Chamber's consideration, there had been no response.

The Chamber considered two separate aspects of the case in relation to Article 1 of Protocol No. 1. First, the case concerned an alleged failure by the authorities to protect the applicant against a continuing interference with his property rights by Mr. B.S. Second, the case concerned the alleged interference with the applicant's property rights resulting from the administrative decision to allocate the apartment to Mr. B.S. The Chamber found that the failure of the authorities to enforce the court decision in the applicant's favour constituted a violation of the applicant's right to the peaceful enjoyment of his possessions pursuant to Article 1 of Protocol No. 1. The Chamber also found that the Commission decision to allocate the apartment to Mr. B.S. violated Article 1 of Protocol No. 1, as no fair balance had been struck between the general interest of providing accommodation for refugees and the applicant's right to use his property for the accommodation of his family.

CH/96/29 The Islamic Community in Bosnia and Herzegovina against the Republika Srpska, 11 June 1999.
full case here

The applicant represents the religious and ethnic minority of Bosnian Muslims in Banja Luka, a city currently with a majority population of Serb descent. Before the war, some 30,000 Muslims lived in the Banja Luka region and could perform their religious practice in 15 mosques in the city. The applicant claimed to be the owner of 15 mosques destroyed in the city in 1993, as well as of the land on which they stood. The applicant alleged that the respondent Party was responsible for the destruction of the mosques and maintained that the municipal bodies of Banja Luka had continued to destroy and remove remains of the mosques even after the Dayton Peace Agreement entered into force. On 3 March 1997 the applicant requested permission to reconstruct seven of the mosques and to erect fences around the sites, but did not receive any official reply.

The applicant complained that the killing, expulsion and displacement of Muslims in Banja Luka and the destruction of its 15 mosques (prior to the Dayton Peace Agreement), together with the removal of the remains of those mosques, the desecration of adjacent graveyards, the destruction of a building on the site of the Ferhadija mosque, the municipality's ongoing refusal to permit the construction of seven mosques or even the erection of fences around the remains of the sites, the inability of Muslims to worship on adequate premises, the local authorities' failure to protect believers during worship and funerals, and the refusal to allow the burial of the late Mufti on the Ferhadija mosque site (all events which occurred after the Dayton Peace Agreement), constituted discrimination against the applicant and its members on the grounds of religion and national origin in the enjoyment of their right to freedom of religion and the right to peaceful enjoyment of their possessions. This discrimination had allegedly continued since the destruction of the mosques in 1993.

Insofar as the applicant had alleged that the authorities of the respondent Party were responsible for, or allowed, the destruction of its 15 mosques in Banja Luka in 1993 as well as the killing, expulsion and displacement of Muslims in the area prior to the entry into force of the Dayton Peace Agreement, the Chamber found that it was not competent to adjudicate the case. The remaining complaints related to a number of events which, taken as a whole, allegedly formed a pattern of ongoing discrimination. The Chamber found itself competent to examine this situation insofar as it had continued after 14 December 1995.

The Chamber found that the objects that remained on the sites of the destroyed mosques on 14 December 1995, and the applicant's right under the Republika Srpska Law on Building Land to use the land on which the destroyed mosques had stood, were "possessions" protected by Article 1 of Protocol No. 1. The destruction and removal of objects on the sites after 14 December 1995 had deprived the applicant of its possessions. The continued refusal of the Municipality to allow the applicant to reconstruct any of the mosques amounted to a control of the use of its possessions. The respondent Party had failed to identify any general interest justifying the overall interference with the applicant's property rights. Thus the Chamber found a violation of Article 1 of Protocol No. 1.

JNA apartments cases:

The Human Rights Chamber of BiH has rendered several decisions relating to the sale of JNA (Yugoslav National Army) apartments in the Federation; the first of these was the Bulatovic Case (3 November 1997) (Subsequent decisions were Medan, Bastijanovic and Markovic v BiH and FBiH (3 November 1997); Kalincevic v BiH and FBiH (17 February 1998); and Turcinovic v FBiH (17 February 1998). Related decisions were Podvorac and Others v BiH and FBiH (14 May 1998); Levi and Others v BiH and FBiH (19 May 1998); Galic v FBiH (12 June 1998); and Maric and Others v BiH and FBiH, (4 September 1998)). In each of these cases the Chamber found that the Federation had inter alia violated the applicants' property rights (Article 1, Protocol 1) and the right of access to a court (Article 6), protected under the European Convention on Human Rights and Fundamental Freedoms. As a result of the passage of the package of property and housing laws in 1998, it is possible that the Federation has to some extent remedied these violations.

The applicants had contracted to purchase socially-owned apartments under the Law on Securing Housing for the Yugoslav National Army (SFRJ 1990), which provided that the holder of occupancy rights residing in apartments owned by the JNA Housing Fund, could purchase the apartment on the basis of a contract made with the authorities responsible for the apartment.

The contracts for purchase were subsequently retroactively annulled and court proceedings relating to purchase contracts, compulsorily adjourned by a series of decrees between February 1992 and December 1995, which culminated in two laws: the Law on Supplement of the Law on the Transfer of the Resources of the SFRJ into the Property of the Republic (March 1995); and the Law on Supplement of the Law on Resources and Financing of the Army (January 1996), according to which all proceedings relating to the purchase of apartments and other properties under the Law on Securing Housing for the JNA were compulsorily adjourned until the issuing of housing laws in the Republic.

In considering whether the measures under scrutiny had a legitimate aim, the Chamber in Bulatovic considered that the purpose was to rectify a constitutional principle of equality of treatment. The inequality arose from the fact that some members of the JNA had been placed in a "privileged position in relation to the purchase of their flats and were able to purchase them on terms more favourable than other occupiers of socially-owned apartments". The Chamber commented that in this respect the State enjoyed a wide "margin of appreciation" and that their judgement would be respected unless it was "manifestly without reasonable foundation". Thus the Chamber accepted that "the aim of putting all occupancy right holders on an equal footing as regards their rights to purchase their apartments might in principle be regarded as a legitimate one".

However, the Chamber found that the means employed to achieve the aim were not proportionate and that the retroactive annulment of a contract was a particularly serious form of interference with the property rights, which also involved an infringement of the principle of the rule of law. The Chamber held that even though the applicant may have been able to purchase the apartments on relatively favourable terms, the Chamber did not find that any social injustice was involved in the system of purchase to justify the disproportionate annulment measure.

The Law also provided a formula for calculating the purchase price of the apartment, which was based on a valuation of the apartment, subject to deductions including in the case of serving or retired members of the JNA including civilians, and also based on contributions made by the purchasers to the housing fund. The Chamber took into consideration the fact that the presence of an occupancy right over the apartment substantially affected its purchase value, and these were not apartments which the JNA could have sold on the open market with vacant possession.

The Chamber found that the annulment of the applicants' contracts constituted a violation of their rights under Article 1, Protocol 1 of the ECHR on the basis that the applicants were "deprived of their possessions". The Chamber also considered the compulsory adjournment of the applicants' civil action and found that this constituted an unjustifiable interference with the applicants' right of access to court for the purpose of having his civil claim determined as guaranteed by Article 6; and that BiH was in violation of its obligations under Article 1 of Annex 6 of the GFAP.

Thus the Chamber had found that the Federation had violated the European Convention on Human Rights, specifically by retroactively annulling JNA contracts, and by denying the purchasers access to the courts to challenge the annulment. The Human Rights Chamber found that these contracts were legally binding, and that it was illegal for the Republic of Bosnia and Herzegovina to cancel them. According to the Chamber, whatever disputes may exist between BiH and FRY concerning these apartments, the individuals who signed the contracts on sale obtained rights which must be respected. They must be given the opportunity to become registered in the property book as owners of the apartments, without being forced to pay a second time.

The so-called "3a case": CH/97/60 et al. Andrija MIHOLIC and others v. BiH and the Federation of BiH.
full case here

The five applicants were former Yugoslav National Army (hereinafter "JNA") members who purchased apartments from the JNA between November 1991 and March 1992 and who have been unable to regain possession or register their apartments as a result of the application of Article 3a of the Law on Cessation of the Application of the Law on Abandoned Apartments. The Chamber found a violation by BiH and the Federation of BiH of all of the applicants' rights to peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1 to the European Convention. The Chamber further found that the applicants have been discriminated against in their rights to peaceful enjoyment of their possessions within the meaning of Article 14 of the Convention in connection with Article 1 of Protocol No. 1, the Federation of Bosnia and Herzegovina being responsible.

Article 3A of the Law on Cessation:

Article 3 of the Law on Cessation establishes a statutory presumption of refugee and displaced person status for persons who left their apartments between April 30, 1991 and April 4, 1998, which cannot be refuted. In relation to abandoned FBH apartments at the disposal of the Federation Ministry of Defense, Article 3a exempts from this presumption persons who were:
- in active service in the SSNO (Federal Secretariat for National Defence) - JNA (i.e. not retired) on April 30, 1991; and
- not citizens of the Socialist Republic of Bosnia and Herzegovina according to the citizenship records.

This exception does not include persons granted refugee status in their country of residence outside the Former SFRJ prior to December 14, 1995. Article 3a further clarifies that persons will not be refugees if they acquired occupancy rights outside the territory of Bosnia and Herzegovina or remained in the active service of any armed forces outside Bosnia and Herzegovina after December 14, 1995. Thus, Art. 3A of the law imposes conditions which must be met by such claimants in order to be recognized as Annex 7 'refugees' and therefore entitled to repossess as opposed to all other prewar ORHs (in both entities) which benefit from an irrebuttable presumption of such status under Art. 3.

As pointed out above, Art. 3A of the law imposes conditions which must be met by such claimants in order to be recognized as Annex 7 'refugees' and therefore entitled to repossess as opposed to all other prewar ORHs (in both entities) which benefit from an irrebuttable presumption of such status under Art. 3. Article 3A has been challenged before the HRCh, by the 5 applicants: Andrija Miholic, Dusan Ristic, Mihailo Buzic, Bozo Corapovic and Milorad Ciric.

The chamber decided based on the facts presented by those 5 applicants. All 5 applicants entered into purchase contracts with the JNA for apartments sometime between November 1991 and March 1992. The applicants have not been able to repossess apartments in Bosnia and Herzegovina as a result of the application of Article 3a. However the chamber differentiates between the 3 first applicants (Miholic, Ristic, Buzic) and the other 2 (Corapovic and Ciric). The 3 first ones are living in BiH and are no longer in active military service with the JNA, the two others are living in FRY and continue to be members of the armed forces of the Federal Republic of Yugoslavia.

The Chamber found first that there has been differential treatment between the occupancy right holders who are subject to the exclusions under Article 3a and other occupancy right holders. Against the claim by the respondent party that there was a legitimate aim in using these apartments to give aid to its war veterans and families, the chamber underlined that there is no evidence that the property is necessarily being used for this stated purpose. Thus, the chamber did not assess on the merits if it would have been enough to legitimaze a differential treatment.

As to the proportionality requirement the Chamber found that Article 3a of the Law on Cessation and Article 39 of the Law on Sale Apartments with an Occupancy Right "strikes at the heart of the principle of the rule of law referred to in the Preamble of the Convention and serves to undermine legal certainty. Therefore, in the Chamber's opinion, this legislation must be regarded as a very serious form of infringement of property rights and can only be justified by cogent reasons". The legal certainty referred to is the right to property derived from a valid contract of sale.

Furthermore regarding the 3 first applicants, the Chamber remarks with respect to the citizenship condition that they are living in Bosnia and Herzegovina, do not have their housing needs met elsewhere, and have currently Bosnia and Herzegovina citizenship. The chamber stated that the distinction made under Article 3a between persons who were registered citizens of Bosnia and Herzegovina on 30 April 1991 and those who were not has no reasonable relationship of proportionality to the decision to significantly interfere with these persons' property and lacks a reasonable foundation. It thus found that those applicants have been discriminated against since the exclusion of persons who were not registered citizens of Bosnia and Herzegovina as of 30 April 1991, but living in Bosnia and Herzegovina, in and of itself, is discriminatory in its intent or impact and thwarts the efforts of "return", which is an essential goal of the General Framework Agreement. (COMM. This reasoning does not apply to the other two cases. END COMM).

The requirement of not been in active service of the JNA as of 30 April 1991 in 3a, was also found to be not only unfounded but discriminatory. The chamber points out that as of that date, Bosnia and Herzegovina was still a part of the former SFRY. Persons who served in the JNA at that time were accordingly serving in the army of the then unified country. Once the war broke out in April of 1992, service in the JNA necessarily changed into something different. Accordingly, the Chamber finds that there is no reasonable relationship of proportionality between this date and any aim, stated or otherwise, to be achieved. Further, the apparently artificial date chosen creates a category of persons who are unable to repossess their apartments without any cogent justification.

As to the requirement not to remain in active military service outside of Bosnia and Herzegovina after 14 December 1995 for the purpose of registering and repossessing their JNA apartment, the Federation has stated that persons who fall into this category can have their housing needs met elsewhere. However, the Chamber could not find that excluding this category of persons from the peaceful enjoyment of their possessions in Bosnia and Herzegovina is proportional to the stated aims. Furthermore, the fact that someone might possibly obtain an occupancy right elsewhere cannot bar that person from exercising their rights under a valid purchase contract in Bosnia and Herzegovina.

It concluded that it could potentially be reasonable and necessary to bar persons serving in a foreign army from the exercise of certain rights, however service in a foreign army is not a basis for stripping a person of an otherwise valid property contract. Thus implying that as far as somebody has a property right within BiH, it cannot be challenge by the mere fact that he has an occupancy right elsewhere.

Thus, the chamber differentiates between the 3 first applicants (Miholic, Ristic, Buzic) and the other 2 (Corapovic and Ciric). The 3 first ones are living in BiH and are no longer in active military service with the JNA, the two others are living in FRY and continue to be members of the armed forces of the Federal Republic of Yugoslavia.

For all of them the Chamber decided that the passing of legislation providing for the retroactive nullification of the applicants' contracts for the purchase of their apartments involved a violation by Bosnia and Herzegovina of the rights of all of the applicants under Article 1 of Protocol No. 1 to the Convention, Bosnia and Herzegovina thereby being in breach of the Human Rights Agreement. Therefore it orders the Federation of Bosnia and Herzegovina to take all necessary steps swiftly, and in any event not later than 7 June 2002, by way of legislative or administrative action, to render ineffective the annulments of the contracts of the applicants and to allow for registration of ownership of their apartments.

It also decided that the rights of all the applicants to peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1 to the Convention have been violated by the Federation of Bosnia and Herzegovina and, further, that they have been discriminated against in their right to peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1 to the Convention, the Federation of Bosnia and Herzegovina thereby being in breach of Article I of the Agreement.

However, while for the 3 first ones, the chamber decided to order the Federation of Bosnia and Herzegovina to take all necessary steps to enable the applicants to regain possession of their apartments, it decided to reject the claims of the other two that the Chamber order the Federation to reinstate them.

COMMENT: The former Chamber's Decisions required the Federation to amend its legislation to reinstate the property rights of those affected, so that they are recognised as private property owners. Therefore, although the Federation property laws apply to these apartments in the same way as for all others, because there is a recognition by the chamber that those individuals are no longer Occupancy rights holders but private property owners, Article 3A of the Law on Cessation of the Application of the Law on Abandoned Apartments (on occupancy rights) should not have applied to them, but the Law on the Cessation of the Application of the Law on Temporary Abandoned Real Property Owned by Citizens (for private property), which does not contain the restrictions in 3A. END COMMENT

CH/96/22 Milivoje BULATOVIC against Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, 7 November 1997.
full case here

The applicant contracted in 1992 to buy from the Yugoslav National Army ("JNA") an apartment which he occupied in Sarajevo. The contract was annulled by legislation passed in December 1995, shortly after the Dayton Peace Agreement came into force. The applicant complained that the annulment of his contract violated his property rights as guaranteed by Article 1 of Protocol No. 1 to the Convention and alleged various other violations of his human rights arising from related matters. The applicant also complained that he was threatened with eviction from his apartment under legislation relating to abandoned apartments.

Insofar as the applicant's complaints arose from the alleged retroactive nullification of his contract for the purchase of his apartment by the December 1995 Decree and the continuing compulsory adjournment of the court proceedings instituted by the applicant, they raised issues which were within the Chamber's competence ratione temporis. Finding that no "effective remedy" was available to the applicant, the Chamber declared the application admissible against both respondent Parties.

Although the applicant's contract did not transfer to him real rights of property in the apartment they conferred on him valuable personal rights which in the Chamber's opinion constituted "assets" and were "possessions" for the purposes of Protocol No. 1. The Chamber concluded that the annulment of the applicant's contractual rights violated his rights under Article 1 of Protocol No. 1.

As for the Federation, the Chamber found that it was responsible for both the content and the application of legislation in force in its territory concerning the subject-matter of the applicants' complaints, even if the legislation was not passed by the institutions of the Federation. The Chamber further noted that the Parties are responsible under the Human Rights Agreement for violations of human rights committed at any level of governmental organisation, including the level of cantons and municipalities, and are also subject to the Chamber's jurisdiction in relation to such violations.

As for the State, the Chamber noted that at the time when the December 1995 Decree was issued and adopted as law, the legislative organs provided for in the Constitutions of both the State and the Federation had not yet been established. The former institutions of the Republic, including the legislative institutions, continued to operate. Insofar as they did so, however, they functioned as institutions of the continuing State, which is therefore responsible for their acts. Since institutions of the State were responsible for passing the legislation which annulled the applicants' contracts, the State was responsible for the aforementioned violations of Article 1 of Protocol No. 1.

CH/96/3, 8 and 9 Branko MEDAN, Stjepan BASTIJANOVIC and Radosav MARKOVIC against Bosnia and Herzegovina and Federation of Bosnia and Herzegovina, 3 November 1997.
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The applicants contracted in 1992 to buy from the Yugoslav National Army ("JNA") apartments which they occupied in Sarajevo. The contracts were annulled by legislation passed shortly after the Dayton Peace Agreement entered into force. The applicants complained that the annulment of their contracts violated their property rights as guaranteed by Article 1 of Protocol No. 1 to the Convention and alleged various other violations of their human rights arising from related matters.

Insofar as the applicants complain of the continuing adjournment of their cases after 14 December 1995, the continuing absence of an effective remedy after that date and the alleged retroactive annulment of their contracts by a law passed since 14 December 1995, their complaints were within the Chamber's competence and were not incompatible with the Agreement ratione temporis. The Chamber found that no effective remedy was in practice available to the applicants, and declared the applications admissible.

Although the applicants' contracts did not of themselves transfer to the applicants real rights of property in the apartments they thus conferred on them valuable personal rights which in the Chamber's opinion constituted "assets" and were "possessions" for the purposes of Protocol No. 1. The Chamber concluded that the annulment of the applicants' contractual rights violated their rights under Article 1 of Protocol No. 1.

CH/97/42 Dusan ERAKOVIC against The Federation of Bosnia and Herzegovina, 15 January 1999.
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The applicant held an occupancy right over an apartment in Sarajevo. In March 1995 he left the city to seek medical treatment. Shortly thereafter his apartment was declared abandoned under the Law on Abandoned Apartments ("old Law") and temporarily allocated to a temporary occupant. On 21 June 1996 he returned to Sarajevo but was not successful in trying to re-enter his apartment. In November 1996 the apartment was declared permanently abandoned and allocated to the temporary occupant. In July 1998 the applicant received a decision under the Law on the Cessation of the Application of the Law on Abandoned Apartments ("new Law"), confirming his occupancy right and entitling him to reclaim the apartment. However, the decision also established that the temporary occupant had obtained a new occupancy right based on a contract signed on 7 January 1998 and had moved into the apartment before 7 February 1998. Pursuant to the new Law the allocation right holder was therefore ordered to refer the case to the competent cantonal authority within 30 days for a further decision by which either the temporary occupant or the applicant was to be allocated another apartment. At the time of the Chamber's consideration, no such decision had yet been made.

Noting that the applicant's apartment was declared abandoned prior to 14 December 1995 but observing that the applicant's grievance related to a situation which continued beyond that date, the Chamber decided that it was competent ratione temporis to examine the case. Considering that the applicant could not be required to exhaust any further remedy provided by domestic law, the Chamber declare the application admissible.

As in Kevesevic, the Chamber found that a decision to declare abandoned an apartment over which someone enjoyed an occupancy right, and the allocation thereof to another person pursuant to the old Law, amounted to a de facto expropriation which was not "subject to the conditions provided for by law." Accordingly, Article 1 of Protocol No. 1 was violated by virtue of the decision to declare the applicant's apartment permanently abandoned. Given that his claim for repossession had not been finally examined in compliance with the time limits in the new Law, this procedure had not been "subject to the conditions provided for by law" either. Thus there had been a continuing violation of the applicant's right under Article 1 of Protocol No. 1.

CH/97/46 Ivica KEVESEVIC Federation of Bosnia and Herzegovina 10 September 1998
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The applicant is a citizen of Bosnia and Herzegovina of Croat descent. In 1993 he left his apartment in Vare{, to which he had an occupancy right, after the town passed into the control of the Army of the Republic of Bosnia and Herzegovina. In July 1995 the applicant's son and in April 1996 the applicant and his spouse returned to the apartment. On 22 November 1996 the applicant's apartment was declared permanently abandoned under Article 10 of the Law on Abandoned Apartments ("old Law"). On 26 November 1996 the applicant appealed this decision to the Ministry of Urban Planning and Environment, which rejected the appeal on 28 November 1996. On 28 November 1996 the applicant and his family were evicted. On 11 March 1998 the Chamber held a hearing at which the agent of the respondent Party stressed a willingness to reach a friendly settlement. However, after the hearing, the Chamber was informed on several occasions by the applicant that he had not been re-instated into his apartment.

After finding that the Decision of 22 November 1996 and the subsequent eviction interfered with the applicant's right to respect for his "home" in the sense of Article 8, the Chamber considered whether the interference was "in accordance with the law" as required by Article 8. The Chamber recalled that in order for a provision to meet the standards of a "law" as this expression is to be understood for the purposes of Article 8, it must be adequately accessible, and it must be formulated with sufficient precision to allow the citizen to regulate his conduct.

As to the first requirement, the Chamber noted that the old Law provided for a time-limit of seven days or fifteen days, running from the date of publication of the Decision on the Cessation of War within which interested persons could claim the right to return to housing to which they had held an occupancy right. This decision was taken by the Presidency of the Republic of Bosnia and Herzegovina on 22 December 1995 and posted the same day on the bulletin board of the Presidency building in Sarajevo with the effect that the Decision came into force on the same day. Considering the large number of persons with a potential interest in the legal provisions in question as well as to the fact that these persons were to be found throughout the country and even abroad, the Chamber found it wholly unrealistic to expect the contents of a notice posted on a single bulletin board in the capital to come to the notice of such a public. Thus the old Law was not "accessible."

As to the second requirement, the Chamber found that compliance with the time limits in the old Law was practically impossible. It is not acceptable that a law should deprive persons permanently of their rights if they do not fulfil a wholly unreasonable condition, such as the time-limit referred to, which could not possibly be fulfilled by the vast majority of those affected. Thus the Chamber found that the old Law did not meet the standards of a "law" as this expression is to be understood for the purposes of Article 8, and that there was a violation of the applicant's right to respect for his home under Article 8.

For the same reasons as given in the context of its examination of the case under Article 8, the Chamber found that interference with the applicant's right to peaceful enjoyment of his possessions was contrary to the law, and thus that there was a violation of Article 1 of Protocol No. 1.

CH/98/1062 Islamic Community in Bosnia and Herzegovina against The Republika Srpska, 9 November 2000.
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In 1992 the Zamlaz, Rijecanska and Divic mosques in Zvornik, the Republika Srpska, were destroyed. After the entry into force of the Dayton Peace Agreement the graveyard which had remained on the Zamlaz site was removed and a multi-storey building was built on this site; the Rijecanska site was illegally used as a market and car park; and on the Divic site a Serb Orthodox church was erected in 1998. The applicant alleged that the respondent Party violated its rights under Article 9 of the Convention and Article 1 of Protocol No. 1 to the Convention by preventing it from using the sites and reconstructing the mosques. In particular, the application raised the question of whether the applicant and its members had been discriminated against in the enjoyment of the rights guaranteed by these provisions.

In relation to the Zamlaz site the Chamber held that the removal of the graveyard and the construction of the multi-storey building substantially interfered with the applicant's possessions. Regarding the Divic site, the Chamber found that the construction of the church substantially interfered with the applicant's enjoyment of its property rights. As the respondent Party did not formally divest the applicant of its rights the Chamber considered them to have involved a de facto deprivation of the applicant's possessions. The Chamber found that the failure of the respondent Party to prevent the use of the Rijecanska site as a car park and market made it impossible for the applicant to reconstruct the mosque and constituted "an interference with the general principle of peaceful enjoyment of possessions." The Chamber found that the interference was not in accordance with the public interest and, therefore, found a violation of the applicant's right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1.

CH/99/2656 Islamic Community in Bosnia and Herzegovina The Republika Srpska 6 December 2000
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In 1993, the Atik, Dasnice, Salihbegovic and Krpic mosques in Bijeljina and the Atik mosque in Janja were destroyed. In June 1999 about 1,000 square meters of the Atik site in Bijeljina were fenced in, the Gasulhana was removed, and the construction of a bank on one part of the site was begun. Construction continued despite an order for provisional measures issued by the Chamber on 10 July 1999. Moreover, moveable kiosks and tables were placed on another part of the site. On the site where the Da{nice mosque once stood a private company built a business facility on the basis of an agreement with the Bijeljina Municipality. The Salihbegovic site, which had been used as a flea market after the destruction of the mosque, began to be used as a car park. The Krpic site was turned into a parking area containing eight smaller business facilities. The Atik site in Janja was used as a flea market. The applicant was thus prevented from using all of these sites for their intended religious purposes.

In relation to the Atik site in Bijeljina, the Chamber found that the removal of the Gasulhana from this site as well as the construction of the bank substantially interfered with the enjoyment of the applicant's possessions. The same applied to the construction building on the Da{nice site. According to the Chamber, these actions constituted an "extensive and definitive occupation of the land in question to which the applicant has a priority right to use." As the respondent Party did not formally divest the applicant of its rights the Chamber considered them to have involved a de facto deprivation of the applicant's possessions. In relation to the Krpic site, the Salihbegovic site and the Atik site in Janja, the Chamber stated that the refusal of the respondent Party to prevent the citizens of Bijeljina from illegally using these sites prevented the applicant from using them for the reconstruction of its mosques and was "an interference with the general principle of peaceful enjoyment of possessions." The Chamber found that the above interferences could not be considered to be in accordance with the public interest as they were based on discriminatory grounds and, therefore, found a violation of the applicant's right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1.