Protecting Property in European Human Rights

This book examines the development of the protection of property in the jurisprudence of the European Court of Human Rights (ECHR). The First Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms introduced the protection of property into the Convention system. The ECHR's case law developed an autonomous concept of property and set out the modes and conditions of State interference with property. Various legal developments can be discerned in the protection of property, such as the emergence of restitution cases and pilot judgments. The author shows that the system of protection has evolved from a system where the State merely refrains from interfering with property, to one in which the State has the obligation to protect property. Although the ECHR has been guided by the concept of social justice in recent judgments, the author concludes that it is doubtful whether social rights, such as the right to housing, will be included among the values enjoying protection as property.

Dragoljub Popoviv is a Judge at the European Court of Human Rights.

Preface	p. ix
Foreword	p. xi
Convention Mechanism of Protecting Property	p. 1
Emergence of The Mechanism	p. 3
Drafting the Convention for the Protection of Human Rights and Fundamental Freedoms	p. 3
General Background	p. 3
Fundamental Dilemma	p. 4
Refusing Inclusion of the Protection of Property into the Text of the Convention	p. 5
First Additional Protocol to the Convention	p. 8
Continuing Work of the Consultative Assembly	p. 9
Including the Protection of Property - Foundations of the Mechanism	p. 10
Basic Features of the Mechanism	p. 13
Introduction	p. 13
Autonomous Concept of Property	p. 14
Concept of Property in Comparative Law	p. 14
Concept of Property/Possessions in the Law of the Convention	p. 16
Attempts of the Doctrine	p. 16
Case-Law of the ECHR	p. 17
Including Trend	p. 17
Excluding Trend	p. 24
Structure of Provisions of Article 1 First Protocol	p. 27
Provisions	p. 27
Handling the Rules	p. 28
State Interference with Property	p. 29
Introduction: Modes and Conditions of State Interference with Property	p. 29
Modes of Interference	p. 29
Deprivation of Property / Expropriation	p. 30
Formal Expropriation	p. 31
De facto Expropriation	p. 35
Indirect Expropriation	p. 38
Regulation of the Use of Property	p. 41
Regulation of the Use of Property Resulting in Deprivation	p. 42
Other Types of Regulation of the Use of Property	p. 46
General Interest	p. 48
Peaceful Enjoyment of Property	p. 49
Conditions of Interference	p. 52
Lawfulness	p. 53
Legitimate Aim	p. 55
Fair Balance	p. 57
GeneralRule	p. 58
Exceptional Circumstances	p. 59
Developments	p. 65
Restitution Cases	p. 67
Background	p. 67
Roots of Evil	p. 67
Goals, Purposes and Consequences	p. 68
Overcoming the Past	p. 70
Restitution of Chattels	p. 72
Earlier Stage of Development	p. 72
Evolution	p. 75
Interpreting the Evolution	p. 78
Restitution of Immovable Property	p. 78
General Developments	p. 78
Specific Issues	p. 88
Pilot Judgments	p. 91
Introduction	p. 91
Role of Precedent	p. 91
Emergence of the Concept	p. 92
The Broniowski Case	p. 94
The Case of Hutten-Czapska	p. 99
The Wow Case	p. 104
Features and Controversies of the Concept	p. 106
Introduction	p. 106
In Search of a Definition	p. 107
A More Restrictive Approach	p. 107
A Broader Approach	p. 109
Characteristic Features	p. 111
Controversies	p. 111
Bank Deposits	p. 113
Introduction	p. 113
Developments	p. 114
Specific Problems and Approaches	p. 114
Blocking of Assets	p. 115
Bank Deposits in Successor-States of the Former Yugoslavia	p. 118
Prospects	p. 123
Advancing the Mechanism	p. 125
Positive Obligation	p. 125
General Rule	p. 126
Physical Protection	p. 126
Obligation to Recover	p. 129
Procedural Guarantees	p. 130
Dilemmas and Challenges	p. 135
Continuing Violation	p. 135
Towards Social Rights	p. 140
Conclusions	p. 145
List of Cases	p. 149
Bibliography	p. 155
Table of Contents provided by Ingram. All Rights Reserved.

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Protecting Property in European Human Rights Law

Summary

Author Biography

Table of Contents

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