Right to Property and Cultural Heritage Protection in the Light of the Practice of the European Court of Human Rights

Abstract

This article presents the relationship between the protection of property and cultural heritage protection under the ECHR system. Most often, state measures aimed at the protection of cultural heritage appear to interfere with private parties’ right to the peaceful enjoyment of possessions. Those dissatisfied with the outcome of domestic court proceedings regarding such interferences often want to reverse unfavorable domestic court decisions by bringing their case before the ECtHR. This article outlines the relevant case law of the ECtHR, distinguishing deprivation of property cases from controls on the use of property, in accordance with the structure of Article 1 of Protocol No. 1. At the same time, it demonstrates the limits of property protection and, thereby, the success of claims by applicants before the ECtHR in cases involving cultural heritage. First, the limited temporal scope of the application of the ECHR and Protocol No. 1 excludes many cultural heritage disputes from the jurisdiction of the ECtHR. Second, the applicant has to prove that (s)he has possessions as interpreted by the ECtHR; the lack of possessions bars in particular restitution claims regarding property expropriated before the ratification of the Convention. Third, cultural heritage protection is considered a legitimate aim by the ECtHR, which can justify a deprivation or restriction of the use of property. States have a wide margin of appreciation in determining whether and how they will ensure the protection of cultural heritage in public interest. In particular, the ECtHR seems to endorse policies underlying both cultural nationalism and internationalism without giving a priori preference to any of them. Finally, the application of the flexible proportionality test by the ECtHR often makes the outcome of the procedure difficult to predict.