Land acquisition powers and land ownership restrictions in European countries: evidence review

5. European Convention on Human Rights case review

Summary

This chapter sets out a rapid review of European Court of Human Rights jurisprudence that relates to land restrictions and acquisitions. It focuses on Article 1 Protocol 1 (A1P1) right to property case law. The review sought to establish where the above case-study examples of land restrictions had been challenged at the European Court of Human Rights.

Where land restrictions or land acquisitions have been challenged at the European Court of Human Rights, it has been in relation to the clarity of the procedure in the supporting legislation and on the proportionality and sometimes timeliness of compensation awards.

Appendix A sets out the number of ECHR right to property cases per country, and Appendix B lists relevant cases on public interest.

5.1 Case review

In order to assess where land restrictions or acquisitions have come under review by the European Court of Human Rights, a rapid review of the HUDOC database of European Convention on Human Rights jurisprudence was undertaken. The review focused on applications made to the European Court of Human Rights alleging a violation/s of the right to property (A1 P1).

The review found that the highest number of A1P1 violations occurred in Russia (234 cases) Romania (209), Turkey (156), Ukraine (121), and Bulgaria (58). This could reflect weaknesses of their domestic enactment, but would need further research to establish this. The full list of countries and cases are set out in Appendix A. It should be noted that while the UK has been subject to 86 applications where claims of violations were made, the Court found the state to be in violation in only 39 cases of those instances.

5.2 Approach of the European Court of Human Rights to land regulations

Although they may also impact other ECHR rights, land regulations generally fall within the remit of the right to peaceful possession of property. When issuing interpretations and judgments on the right to property, the European Court of Human Rights gives member countries a high degree of autonomy (known as the margin of appreciation).

A1P1 states that member countries may infringe the right to property (“deprive a person of his possessions”) if it is in the public interest to do so, and if it is subject to the conditions provided for by the law and by the general principles of international law.

This is further supported by the following statement in A1P1; “[the ECHR right to property] 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.”

This means that governments measures to control (or ‘interfere with’) property can be challenged on the basis of whether the measure is in the public interest, whether it is supported by domestic legislation (“subject to the conditions provided for by the law”), and in accordance with the general principles of international law.

5.3 Approach of the European Court of Human Rights to public interest

ECHR precedent, such as of Pešková v the Czech Republic App no 22186/03, noted above in the case study on the Czech Republic, demonstrates that the Court gives member countries wide discretion to decide on the public interest.

The European Court of Human Rights has established and upheld an approach to public interest that prioritises the member country’s judgment on public interest “unless that judgment is manifestly without reasonable foundation”.

The following passages from James and Others v The United Kingdom (Application no. 8793/79) 1986 are frequently cited as setting out the European Court of Human Rights position on public interest:

“91. The Court is of the opinion that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is ‘in the public interest’. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities, accordingly, enjoy a certain margin of appreciation.

Furthermore, the notion of ‘public interest’ ‘is necessarily extensive. In particular, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is ‘in the public interest’ unless that judgment is manifestly without reasonable foundation (see James and Others, cited above, p. 32, § 46; The former King of Greece and Others, cited above, § 87; and Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 67 in fine, ECHR 2002-IX). The same applies necessarily, if not a fortiori, to such radical changes as those occurring at the time of German reunification, when the system changed to a market economy.”^[61]

In the same case the Court set out that “a taking of property effected in pursuance of legitimate social, economic or other policies may be ‘in the public interest’, even if the community at large has no direct use or enjoyment of the property taken.” In that case the leasehold reform (right to buy) legislation was not therefore an infringement of Article 1 (P1-1), provided compensation was paid to the landowner.

Article 1 Protocol 1 ECHR (‘the right to property’) compensation is usually paid at market value and is usually paid by the state, although it is possible for the state to require other bodies to do so. However the European Court of Human Rights has stated that there may be circumstances where the public interest outweighs the need to protect the individual’s rights and in those cases A1P1 “may call for less than reimbursement of the full market value.” (Lithgow v. United Kingdom, (1986) at 51).

Where land acquisitions have been successfully challenged at the European Court of Human Rights, it has been in relation to insufficient compensation, i.e. the compensation was not deemed proportionate to the loss suffered, or the person concerned had to bear a special and exorbitant burden (Sporrong and Lönnroth v. Sweden 1882 at 69).

On compensation, the case also states that Article 1 (P1-1) does not guarantee a right to full compensation in all circumstances, adding that; “Legitimate objectives of ‘public interest’, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value.”

Further comments on whether compensation is included in A1P1 and the concurring opinion of Judge Thor Vilhalmsson suggests that there is not a strong consensus on the right to compensation under A1P1.^[62]

Where land restrictions or land acquisitions have been challenged at the European Court of Human Rights, it has been in relation to either:

• the clarity of the procedure in the supporting legislation; or
• the proportionality and sometimes timeliness of compensation awards (see for example Affaire Hentrich v. France App 13616/88 1994 in relation to SAFER case study).

Sluysmans et al research^[63] suggests that there is particular sensitivity where private entities stand to benefit from expropriations through generous compensation schemes and the public acceptability of the expropriation is found to play a role in determining whether it is within the public interest. The question of balancing competing interests becomes, therefore, a question of balancing compensation. Ensuring that compensation meets market value appears to be an accepted norm.

The review also searched the HUDOC database for case law referring to ‘public interest tests’ as opposed to ‘public interest’. Of the relatively few mentions found, discussion centred on whether the public interest test had been met rather than the legitimacy of public interest tests or the requirement for specific procedures around public interest tests.^[64]