Property II

Historcial Expropriation

In a series of cases involving claims in Central and Eastern Europe arising from post-war adjustment of boundaries, appropriation and movement of peoples, the court held that pre-Convention expropriations were not covered by the Convention.

The former property right must be sufficiently established. Where there is a procedure for recognition in national law which is conditional, failure to satisfy it might extinguish a  standing claim.

In Wittek v. Germany, there was an attempt to recover former title of the property given up as a condition of being allowed to leave former East Germany. These claims were not permissible under German Law, and it was held that there was no disproportionate violation.

Protected Possessions

In Kopecky v. Slovakia, the applicant’s father had been convicted for keeping gold and silver coins which had been confiscated. The decisions were found invalid after the end of the Communist regime. The applicant sought restitution under the statute.

The applicant could not prove the location of the property on the date of commencement of legislation as required. The majority of the Grand Chamber decided the applicant had no interest sufficient to constitute possession.

It was not enough that there was a genuine dispute or arguable case. A number of dissenting judges took the view that this ran counter to the purpose of the restitution laws to provide a remedy only to then remove the legitimate interest by burdensome requirements which were not easily fulfilled.

Forced Transfer

In Zvolsky and Zvolska, the applicants had been required to transfer a property to a former owner, which they acquired without consideration some 30 years earlier under a Communist government.

Release from the obligation to work for the socialist cooperative required that the land be transferred. The applicants were required to give an undertaking to work the land. The seller had confirmed by declaration in 1991 that he transferred the land freely and later sought to recover it, and he obtained an order for its recovery.

The court held there was a basis for the restitution and that it was legitimate in the public interest to address infringements of property rights which had occurred under the former Communist regime. However, the legislation did not examine the individual circumstances surrounding the transfer and consider the competing claims. Accordingly, there was a violation of the applicant’s Convention rights.

Broniowski related to land lost as a result of the moving of the Eastern Polish border after the Second World War and the forced movement of Polish citizens. They were entitled to buy land from the state and have this taken into account in the price.

Compensation and Proportionality

State agricultural property was excluded and reduced the pool of land available. The scheme was subsequently found to be unconstitutional and was closed and those who had not been awarded compensation were given 15 percent of their entitlement.

The applicant received only 2 percent of the value of lands abandoned by his grandmother. The entitlement to compensation arose under Polish legislation in the 21st Century. The court held that there was a wide margin of appreciation for the state in the circumstances in implementing social and economic policies. It should respect the judgement of the state\’s legislature in relation to difficult matters of social, political and economic consequence arising from a transition to a democratic regime.

Hutten Czapski v. Poland concerned hundreds of thousands of compulsory leases put in place of low rents after World War II and thereafter maintained. The European Court held that the measures had a proper legal base and legitimate aim in the general interest but that a fair balance was not struck. It held there was a violation of the applicant’s(landlord) rights under the Convention.

In Jahn v. Germany, land in former East Germany had been appropriated and distributed in plots to others who had little land. Parts of the land had been used for food production.

The Federal German Law post-unification required an assignment of properties to the state without compensation where an activity had not been carried on in agriculture, forestry or food. It was held that there was a legal basis and that there was a fair balance between the rights of the interest and the community and that, in the circumstances, the absence of compensation was justifiable to prevent windfall gain rather a deprivation of land held.

In a case, Vistins and another v. Latvia, compensation was paid at appropriation values from 50 years earlier. There was no fair balance and accordingly, there was a violation of the Convention.

Title Conflicts

In Strain v. Romania, the applicants were owners of a house which was nationalised in 1950. They sought a declaration for restitution in 1993. A state company which knew of the claim sold the property. The court held that the law did not meet the requirements for a proper legal basis for a sale to a third party and there was not legitimate aim or exceptional circumstances on the part of the state company.

In Pyraintiene v. Lithuania, the applicant had purchased land from the state, which was subject to a claim for restitution by a previous owner. The sale was declared void and compensation was paid for the price paid rather than the market price. The court held that the applicant had acted in good faith and could not have known about the claim on the land. The compensation ( price paid) did not rectify the error on the part of the state.

Excessive delays in paying compensation for nationalised property may constitute an unlawful interference with the right of peaceful enjoyment of possessions.

Control

A State has the power to control the use of property in the general interest or to secure the payment of taxes,  other contributions or penalties. The interference with the rights must have a basis in national law. The court requires a fair balance between the individual interest and the general interest. A wide margin of appreciation has allowed to states.

In Suljagić v. Bosnia and Herzegovina, the applicant had deposited old foreign currency in a bank in the former Socialist  Republic of Yugoslavia/ Legislation was passed by the respondent State to recompense deposits of the old foreign currency. A fair balance had not been achieved due to delays in implementing the law.

Eviction Restriction

In Spadea v. Italy, a system of staggering enforcement of eviction orders in order to disrupt the tenancy market was put in place due to a large number of leases which expired in a  short timeframe. It was held that a fair balance had been struck.

Where, however, the delays placed an excessive burden of over a decade, whereby landlords were kept out of possession without obtaining compensation, and there was a breach of the Convention.

In Nobel v. Netherlands, rent controls, which were in place and property was purchased, were held to be reasonable.

Planning

In Palopoulos v. Greece, the applicant had purchased lands to develop as a shopping centre. The relevant authority blocked the development of lands but did not have monies to pay compensation to expropriate them.

New building permits were prohibited, and ultimately the land was expropriated. The first stage was not a deprivation since the owner remained as such. However, there was no reasonable balance between the rights of the owners and environmental concerns and there was a breach.

Interference with Enjoyment

In considering whether there is an interference with the peaceful enjoyment of possessions, the test is as follows. Both an interference with the peaceful enjoyment of possessions and abstention from action must strike a fair balance between demands of the general interest of the community and the requirements of the protection of the individual\’s fundamental rights. The concern to achieve this balance is reflected in Article 1, Protocol 1 as a whole.

There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realized by any measure applied by the state, including measures depriving a person of his or her possessions. In each case involving the violation of that Article, the court must therefore ascertain whether by reason of the state’s action or inaction, the person concerned had to bear a disproportionate and excessive burden.

The courts recognise that there is a wide margin of appreciation for states in deciding what social justice requires. It examines measures to consider whether there has been a fair balance. If an excessive balance is placed on the applicant, it may be a breach.