Protection of the right to property in the case law of the European court of human rights

Khrystyna Maikut,Uliana Andrusiv,Olha Zaiats,Alona Dutko,Yurii Yurkevych

doi:10.34069/ai/2020.28.04.54

Khrystyna Maikut, Uliana Andrusiv + Show 3 more

Open Access

https://doi.org/10.34069/ai/2020.28.04.54

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Abstract

The contribution describes the peculiarities of the protection of the right to property in the case law of the European Court of Human Rights. It has been found that, given the peculiarities of the legal nature of the right to property, it requires state regulation and may be subject to restriction and interference. Attention is drawn to the predication of any potential interference with the right to property on a general principle, according to which everyone has the right to peacefully enjoy their property. The article further clarifies the forms of interference with the ownership of individuals and legal entities by the state, such as expropriation of property and control over use of property. The triple normative regulation of property relations is investigated, and the elements of the relevant structure were covered in detail. The contents of the three-component test, in particular, its elements, such as the legality of interference with the right to property, the legitimacy of the purpose of such interference, and a fair balance between the interests of protection of the right to property and public interests, are expounded with reference to the awards of the European Court of Human Rights. Particular attention was paid to legality provisions. The contribution further dwells on the conceptual and categorical framework of the terms “general interest” and “public interest.” The authors complete their scientific inquiry with appropriate generalisations and a summary.

Highlights

The emergence of rule of law and social and democratic state is closely linked to the implementation of a proper system of legal protection of such fundamental human rights as the right to property
The right of property is protected at the highest supranational level under Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms
The Convention operates as an instrument of protection of the right to property: 1) at the national level – as part of relevant international obligations of the state; 2) at the international level – as a form of collective redress implementable through a conventional jurisdictional institution – the European Court of Human Rights

Summary

Introduction

The emergence of rule of law and social and democratic state is closely linked to the implementation of a proper system of legal protection of such fundamental human rights as the right to property. Effective guarantees of the exercise of the right to property and its reliable and effective protection constitute important attributes of rule of law, which acquires a new relevance against the backdrop of European integration processes and with a view to existing political, economic and social problems in modern society. The Convention operates as an instrument of protection of the right to property: 1) at the national level – as part of relevant international obligations of the state; 2) at the international level – as a form of collective redress implementable through a conventional jurisdictional institution – the European Court of Human Rights (hereinafter, the “ECHR”).

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