Powers of State
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 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.
Margin of Appreciation
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.
In O’Sullivan McCarthy Mussel Development Ltd v. Ireland 2018 the applicant company fished for immature mussels (mussel seed), and then cultivates and sells them when they are developed, a process which takes two years. The case concerned its complaint that the Irish Government had caused it financial losses by the way it had complied with European Union environmental legislation
The Court held that there had been no violation of Article 1 of Protocol No. 1 to the Convention. It observed in particular that that the protection of the environment and compliance with the respondent State’s obligations under EU law were both legitimate objectives. As a commercial operator the company should have been aware that the need to comply with EU rules was likely to impact its business. Overall, the Court thus found that the company had not suffered a disproportionate burden due to the Irish Government’s actions and that Ireland had ensured a fair balance between the general interests of the community and the protection of individual rights.
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.
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.
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.
Pine Valley Developments Ltd and Others v. Ireland case concerned the withdrawal of permission to build on land purchased for construction. They complained in particular about the Supreme Court’s decision holding the outline planning permission for industrial warehouse and office development on the site, which had been granted to the then owner, to be invalid.
The Court held that there had been no violation of Article 1 of Protocol No. 1 to the Convention, finding that the annulment of the building permission could not be considered disproportionate to the legitimate aim of preservation of the environment. The decision of the Supreme Court, the result of which had been to prevent building in an area zoned for the further development of agriculture so as to preserve a green belt, was therefore to be regarded as a proper way – if not the only way – of achieving that aim. Furthermore, the applicants were engaged on a commercial venture which, by its very nature, involved an element of risk, and they were aware not only of the zoning plan but also of the opposition of the local authority, to any departure from it.
Papastavrou and Others v. Greece In this case the 25 applicants and the authorities were in dispute over the ownership of a plot of land. In 1994 the prefect of Athens had decided that an area including the disputed plot of land, should be reafforested. The applicants submitted in particular that their property had effectively been expropriated without their being paid any compensation and argued that no public interest could justify such a drastic limitation of their property rights, taking into account that any reafforestation of the land was impossible because of the type and quality of the soil.
The Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention, finding that a reasonable balance had not been struck between the public interest and the requirements of the protection of the applicants’ rights. It considered in particular that the authorities were wrong to have ordered the reforestation measure without first assessing how the situation had evolved since 1934.
Turgut and Others v. Turkey 2008 concerned land of more than 100,000 square metres, which the applicants claimed has been owned by their families for more than three generations. The applicants complained about a decision of the Turkish courts to register the land in the name of the Public Treasury on the ground that the land was public forest, without their being paid any compensation.
The Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention. Recalling in particular that the protection of nature and forests, and of the environment in general, was a matter of considerable and constant concern to public opinion and consequently to the public authorities, and that economic imperatives and even certain fundamental rights, including the right of property, should not be placed before considerations relating to environmental protection, in particular when there was legislation on the subject, the Court also noted, however, that the taking of property without payment of an amount reasonably related to its value normally constituted a disproportionate interference, and a total lack of compensation could be considered justifiable only in exceptional circumstances.
In the present case, the applicants had not received any compensation for the transfer of their property to the Treasury. No exceptional circumstance had further been raised by the Turkish Government in order to justify the lack of compensation. The Court therefore found that the failure to award the applicants any compensation had upset, to their detriment, the fair balance that had to be struck between the demands of the general interest of the community and the requirements of the protection of individual rights.
Enforcement of Breach
Valico S.R.L. v. Italy 2006 In this case a fine had been imposed on the applicant company for having constructed a building in breach of rules on the construction of buildings designed to protect the landscape and the environment.
The Court observed that the disputed measure had been in accordance with the law and had pursued the legitimate aim of preserving the landscape and ensuring rational and environmentally sound planning, all of which was in accordance with the general interest.
Finding that the Italian authorities had struck a fair balance between, on the one hand, the general interest and, on the other, respect for the applicant company’s right of property, and that the interference did not, therefore, impose an excessive burden on the applicant such as to make the measure complained of disproportionate to the legitimate aim pursued, the Court declared the complaint under Article 1 of Protocol No. 1 inadmissible as being manifestly ill-founded.
Hamer v. Belgium 2007 case related to the demolition, pursuant to an enforcement order, of a holiday home, built in 1967 by the applicant’s parents without a building permit. In 1994 the police had drawn up two reports, one concerning the felling of trees on the property in violation of forestry regulations, and one for building a house without planning permission in a woodland area where no planning permission could be granted. The applicant had been ordered to restore the site to its original state. She complained in particular of a violation of her property rights.
The Court held that there had been no violation of Article 1 of Protocol No. 1 to the Convention in the applicant’s case, finding that she had not suffered disproportionate interference with her property rights. In this case the Court however reiterated that while none of the Articles of the European Convention on Human Rights is specifically designed to provide general protection of the environment as such, in today’s society the protection of the environment is an increasingly important consideration. It further noted that the environment is a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities.
Depalle v. France and Brosset-Triboulet and Others v. France 2010 (Grand Chamber) These cases concerned the obligation on owners to demolish, at their own expense and without compensation, house they had lawfully purchased on maritime public land. The applicants submitted in particular that this obligation was not compatible with their rights under Article 1 of Protocol No. 1 to the Convention.
In both cases the Court held that there had been no violation of Article 1 of Protocol No. 1 to the Convention, finding that the applicants would not bear an individual and excessive burden in the event of demolition of their houses with no compensation and that, accordingly, the balance between the interests of the community and those of the applicants would not be upset. The Court recalled in particular that, in a case concerning regional planning and environmental conservation policies, the community’s general interest was pre-eminent. .. this was part and parcel of a consistent and rigorous application of the law given the growing need to protect coastal areas and their use by the public, and also to ensure compliance with planning regulations.
Yașar v. Romania 2019 concerned the confiscation of the applicant’s vessel because it had been used for illegal fishing in the Black Sea. The applicant alleged that the confiscation had been unlawful and disproportionate.
The Court held that there had been no violation of Article 1 of Protocol No. 1 to the Convention. Noting in particular that the confiscation had amounted to a deprivation of property as the vessel had ultimately been sold to a private party and the money from the sale collected by the State, it found, however, that the Turkish courts had carefully balanced the rights at stake and had found that the demands of the general interest to prevent activities which posed a serious threat to the biological resources in the Black Sea had outweighed the applicant’s property rights. The Court also pointed out that the confiscation had not imposed an excessive burden on the applicant.
Öneryıldız v. Turkey In 1986 the applicants obtained a tourist-investment certificate from the authorities for the construction of a hotel on a plot of land they had inherited, located on the coast. On an appeal from the Public Treasury, a Court of First Instance annulled the registration of the property in the land register and ordered the demolition of the hotel that was being built, on the ground that the plot of land in question was located on the seashore and could not be privately acquired.
The Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention. It found that the applicants had acquired the disputed plot of land in good faith. Until the title was annulled in favour of the State, they had been the owners and had paid taxes in respect of the property. They had enjoyed peaceful possession of their property and had begun to have a hotel complex built on the land, as lawful owners, after obtaining a building permit for that purpose.But they were subsequently deprived of their property by a judicial decision, which the Court did not find in any way arbitrary.
The deprivation of ownership of the land, which was located on the shoreline and was thus part of the beach, a public area open to all, fulfilled a legitimate purpose. However, the applicants had not received any compensation for the transfer of their property to the Public Treasury or for the demolition of the hotel, notwithstanding the proceedings they had brought to that end before the Turkish courts, and without any justification by the Turkish Government for the total lack of compensation.
Kristiana Ltd. v. Lithuaniay 2018 This case concerned the applicant company’s allegation of unlawful and unreasonable restriction of its property rights, following its purchase of privatised former military buildings situated in a protected area. In particular, the company alleged that it had been denied the opportunity to repair and renovate its premises, and that despite its buildings being earmarked for demolition, no compensation had been made available, and no time-limits had been set.
The Court held that there had been no violation of Article 1 of Protocol No. 1 to the Convention, finding that a fair balance had been struck between the general interest and the applicant company’s individual property right. It noted in particular that the company should have foreseen both the denial of planning permission and the ultimate requirement to demolish the buildings, which was provided for under a development plan of 1994 and remained unchanged. In addition, the Lithuanian authorities’ aim had been legitimate, namely the protection of cultural heritage and the honouring of rigorous international obligations to UNESCO. Finally, given the public law context, the authorities’ actions were deemed proportionate. The Court also held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention.
Interference with EnjoymentDimitar Yordanov v. Bulgaria concerned the applicant’s complaint about damage to his property caused by a nearby coalmine. At the end of the 1980s or the beginning of the 1990s, the State decided to create an opencast coalmine near to the village in which he owned a plot of land. A number of properties, including his one, were expropriated. He waited for two years without receiving another plot of land in compensation. He therefore cancelled the procedure with the local authorities and remained in the house, while the mine started operating and gradually expanded. At its closest, the mine operated within 160-180 metres from his house, with coal being extracted by blasting. Cracks appeared on the walls of the house and his barn and animal pen collapsed
The Court held that there had been a violation of Article 1 of Protocol No. 1. It noted in particular that the authorities, through the failed expropriation of the applicant’s property and the work of the mine under what was effectively State control, had been responsible for the applicant’s property remaining in the area of environmental hazard, namely the daily detonations in close proximity to the applicant’s home. That situation, which had led the applicant to abandon his property, amounted to State interference with the peaceful enjoyment of his possessions. Moreover, the detonations within the sanitation zone had been in manifest breach of domestic law.
The interference with the peaceful enjoyment of the applicant’s possessions had thus not been lawful for the purposes of the analysis under Article 1 of Protocol No. 1. The Court held, however, that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that the decisions of the national courts, in particular their conclusion contested by the applicant as to the existence of a causal link between the detonation works at the mine and the damage to his property, had not reached the threshold of arbitrariness and manifest unreasonableness or amounted to a denial of justice.