Property Regime Change [ECHR]

Historical 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.

Reversing Historical Expropriation

In a number of cases involving the restoration of property formerly owned in Central and Eastern Europe many years earlier, prior to Communist government action, it was held that there was no duty on states to restore property taken by an earlier regime. Equally, they are not restricted from doing so.

There was a proprietary right where a scheme had been duly established. It should act in a timely manner and consistently. Thee boundaries between the State’s positive and negative obligations under the Protocol did not lend themselves to a precise definition. However, the criteria do not differ in substance.

Regard must be held in both cases to the fair balance to be struck between the competing interest of the individual and the community as a whole. States enjoy a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.

Reversal Issues

In Bronowski v Poland, the state established a compensation scheme for land lost after changes in the Polish border. 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. T

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.

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.

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 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.

Recovery 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

Title Conflicts

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.

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.

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.

Effect of Ongoing Conflict

Chiragov and Others v. Armenia 2015 (Grand Chamber ) case concerned the complaints by six Azerbaijani refugees that they were unable to return to their homes and property in the district of Lachin, in Azerbaijan, from where they had been forced to flee in 1992 during the conflict over Nagorno-Karabakh. The applicants complained in particular about the loss of all control over, and of all potential to use, sell, bequeath, mortgage, develop and enjoy their properties in Lachin.

In the applicants’ case, the Court confirmed that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories and thus had jurisdiction over the district of Lachin. The Court considered in particular that there was no justification for denying the applicants access to their property without providing them with compensation. The fact that peace negotiations were ongoing did not free the Armenian Government from their duty to take other measures. The Court also noted that what was called for was a property claims mechanism which would be easily accessible to allow the applicants and others in their situation to have their property rights restored and to obtain compensation.

Effect of Ongoing Conflict II

Sargsyan v. Azerbaijan concerned an Armenian refugee’s complaint that, after having been forced to flee from his home in the Shahumyan region of Azerbaijan in 1992 during the conflict over Nagorno-Karabakh, he had since been denied the right to return to his village and to have access to and use his property there.

The Court confirmed that, although the village from which he had to flee was located in a disputed area, Azerbaijan had jurisdiction over it. Concerning the applicant’s complaints, it held that there had been a continuing violation of Article 1(protection of property) of Protocol No. 1 to the Convention, a continuing violation of Article 8 (right to respect for private and family life) and a continuing violation of Article 13 (right to an effective remedy) of the Convention. The Court considered in particular that while it was justified by safety considerations to refuse civilians access to the village, the State had a duty to take alternative measures in order to secure the applicant’s rights as long as access to the property was not possible.