From Diplomatic – to Human Rights Protection: The Possessions under the 1950 European Human Rights Convention, First Additional Protocol Article 1

Abstract

‘Possession’ as defined in The European Convention of Human Rights (ECHR), the First Additional Protocol (FAP) Article 1 resulting from judicial legislation incorporates not only the physical control of assets, but as well rights and benefi ts constituting assets, intellectual property, patrimonial rights, the “right to credit”, “VAT [value added tax] refund”, right to social security benefits, licenses etc. in respect of which the applicant can argue that he has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment. Clearly, economic rights of different kinds are now part of the human rights arena. A prediction is that a great variety of assets, shares, obligations, futures, factoring, etc. will in the future gain from not only diplomatic protection, but also from direct personal applicability of human rights. The human rights protection according to ECHR, FAP Article 1 – the rights of which should be practical and effective – sets forth a complicated, intertwined, three–step determinative process: (1)The principle of peaceful use of one’s possession[s], which requires the injured party to demonstrate that his interest qualifies as a ‘possession.’(2) A legally valid expropriation and state interference or intervention that turns into a deprivation when it exceeds a minimum level of intensity. In concreto the deprivation must be “in the public interest” and must have taken place “subject to the conditions provided for by law,” and by the “general principles of international law.” Illegal takings do not require a showing of formal, i.e. de jure expropriation. It is sufficient that a de facto deprivation affects the party’s peaceful enjoyment of his or her possessions in a manner that is equal to expropriation. (3) The deprivation must be carried out in the cause of public interest. To be justifi ed or legally justifiable, a deprivation should strike a “fair balance” between the demands of the general interest of the community and the state’s duty to protect the individual’s fundamental rights. If the agencies fail to conduct such a deliberation, the plaintiff has a solid claim. Where the government does not deliberate the merits of the conflicting community and individual claims, it has demonstrably never initiated the balancing process in the first place, which in and of it self breaches plaintiff’s human rights.