Right to peaceful enjoyment of one's possessions

After having considered the substantial rights within the European Convention on Human Rights and Fundamental Freedoms (ECHR), we shall now pass on to consider important rights protected by the various protocols of the ECHR.

In 1952 the right to protection of one's property received express recognition by the various member states in Paris. One might believe that since it has been included in a protocol to the ECHR and not in the ECHR itself, it is relatively unimportant.

However, much public debate and controversy has been created in relation to this right particularly amid the violations and alleged violations throughout the 1970s and 1980s in Malta.

It is noticeable that there is no direct right to property, but a right to protection of one's possessions, including property. Article 1 of Protocol 1 states:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by the law and by the general principles of international law.

"The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

It is noticeable that, unlike in the ECHR provisions considered so far in these fortnightly articles, reference is here made to legal persons (such as companies) and to international law.

This immediately goes to show the different characteristics that such a right possesses and the divergent factors which should be taken into account in consideration of this right. Our Constitution in Article 37 (1) does not expressly refer to these elements but states, among other things:

"No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where provision is made by a law applicable to that taking possession or acquisition for the payment of adequate compensation, securing to any person claiming such compensation a right of access to an independent and impartial court or tribunal established by law for the purpose of determining his interest in, or right over the property and the amount of any compensation to which he may be entitled, and for the purpose of obtaining payment of that compensation; and securing to any party to proceedings in that court or tribunal relating to such a claim a right of appeal from its determination to the Court of Appeal in Malta."

There is therefore a general right to peaceful enjoyment of possessions. Interferences can, however, be justified on conditions set out in the legal provision which include references both to the public interest and the general interest.

This implies a test of proportionality, a balancing of interests of the individual against the collective interest. In various judgments, such as Carbonara and Ventura vs Italy (2000), the European Court of Human Rights (ECtHR) repeatedly established three rules:

"The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property. The second rule covers deprivation of possessions and subjects it to certain conditions.

"The third recognises that the states are entitled, among other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose."

The ECtHR also held in AGOSI vs United Kingdom (1986) that "the three rules are not distinct in the sense of being unconnected; the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule."

The ECtHR also developed positive obligations of states which emerged from this right (Gustaffson vs Sweden {1996}). It stated that "the state may be responsible under article 1 for interferences with peaceful enjoyment of possessions resulting from transactions between private individuals." As also held in Loizidou vs Turkey (1996), the state has a positive obligation to ensure that the owner of real property has access to it so that it can be enjoyed.

For this right to come into play, it must be first established what constitutes possession. The general trend is that classification of the matter under national law is given importance.

However, clearly both real and personal property are within the notion of possessions, and the concept extends broadly to cover all manner of things which have an economic value. These thus include company shares, a patent, goodwill, a licence which is vital for the conduct of a business, a planning permission (in our case, a permission by the Malta Environment and Planning Authority), etc.

The very essence of deprivation is the extinction of the legal rights of the owner. This can arise in various circumstances. Where a claim is made that there has been a deprivation of property in the absence of a formal transfer of ownership, the ECtHR will look behind the appearances and investigate the realities of the situation complained of.

Since the Convention is intended to guarantee rights that are practical and effective, it has to be ascertained whether that situation amounted to a de facto expropriation (Sporrong and Lonnroth vs Sweden {1982}). Therefore, deprivation of property might arise even without a formal expropriation. However, for a de facto deprivation through expropriation to come into play, there must effectively be an extinction of property rights.

In the Handyside vs UK (1976) case, the ECtHR enunciated that temporary seizures do not amount to deprivation of property though they may constitute controls on the use of property seized.

Destruction of property also constitutes a deprivation of it. For a deprivation to be justifiable under Article 1 of Protocol 1, the following three conditions must be met:

The measure providing for the deprivation must be in accordance with the conditions provided for by national law. This involves the identification of a national law authorising the taking and also some consideration of the quality of that law in order to prevent arbitrary action.

The general principles of international law must be respected. These principles connote that non-nationals are protected against arbitrary expropriations and, in the case of lawful expropriations, are entitled to compensation for the loss of their property.

The deprivation must be in the public interest, and this will require a balancing of the public interest against individual rights. In property cases there is almost a presumption that a national measure has been taken in the public interest.

As to compensation, the ECtHR has stated in Holy Monasteries vs Greece (1996) that: "Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicants.

"In this connection the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 only in exceptional circumstances.

"Article 1 does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of public interest may call for less than reimbursement of the full market value."

The ECtHR will consider all the facts of the case. For example, long delays in the payment of compensation, particularly where there is high inflation or an inadequate payment of interest on the late payment, will also impose an excessive burden on the individual.

In Akkus vs Turkey (1997), violations were found where the land valuation was at the price obtaining at the date of the taking and where inflation was running at 70 per cent, but this had not been considered in the payments eventually made.