Protecting Property in European Human Rights Law

Dragoljub Popovic

• Publisher: Eleven International Publishing
• Year: 2009
• Topic: Law
• eBook ISBN:
  9789051891980
• Subtopic: International Law
• Index: Law

This book examines the development of the protection of property in the jurisprudence of the European Court of Human Rights (ECHR). The First Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms introduced the protection of property into the Convention system. The ECHR's case law developed an autonomous concept of property and set out the modes and conditions of State interference with property. Various legal developments can be discerned in the protection of property, such as the emergence of restitution cases and pilot judgments. The author shows that the system of protection has evolved from a system where the State merely refrains from interfering with property, to one in which the State has the obligation to protect property. Although the ECHR has been guided by the concept of social justice in recent judgments, the author concludes that it is doubtful whether social rights, such as the right to housing, will be included among the values enjoying protection as property.

Table of contents

• Cover
• Table of Contents
• Preface
• Foreword
• Part One: Convention Mechanism of Protecting Property
• Chapter One: Emergence of The Mechanism
• A. DRAFTING THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
• 1. General Background
• 2. Fundamental Dilemma
• 3. Refusing Inclusion of the Protection of Property into the Text of the Convention
• B. FIRST ADDITIONAL PROTOCOL TO THE CONVENTION
• 1. Continuing Work of the Consultative Assembly
• 2. Including the Protection of Property – Foundations of the Mechanism
• Chapter Two: Basic Features of the Mechanism
• A. INTRODUCTION
• B. AUTONOMOUS CONCEPT OF PROPERTY
• 1. Concept of Property in Comparative Law
• 2. Concept of Property/Possessions in the Law of the Convention
• 2.1. Attempts of the Doctrine
• 2.2. Case-Law of the ECHR
• 2.2.1. Including Trend
• 2.2.2. Excluding Trend
• C. STRUCTURE OF PROVISIONS OF ARTICLE 1 FIRST PROTOCOL
• 1. Provisions
• 2. Handling the Rules
• Chapter Three: State Interference with Property
• A. INTRODUCTION: MODES AND CONDITIONS OF STATE INTERFERENCE WITHPROPERTY
• B. MODES OF INTERFERENCE
• 1. Deprivation of Property / Expropriation
• 1.1. Formal Expropriation
• 1.2. De facto Expropriation
• 1.3. Indirect Expropriation
• 2. Regulation of the Use of Property
• 2.1. Regulation of the Use of Property Resulting in Deprivation
• 2.2. Other Types of Regulation of the Use of Property
• 2.3. General Interest
• 3. Peaceful Enjoyment of Property
• C. CONDITIONS OF INTERFERENCE
• 1. Lawfulness
• 2. Legitimate Aim
• 3. Fair Balance
• 3.1. General Rule
• 3.2. Exceptional Circumstances
• Part Two: Developments
• Chapter Four: Restitution Cases
• A. BACKGROUND
• 1. Roots of Evil
• 2. Goals, Purposes and Consequences
• 3. Overcoming the Past
• B. RESTITUTION OF CHATTELS
• 1. Earlier Stage of Development
• 2. Evolution
• 3. Interpreting the Evolution
• C. RESTITUTION OF IMMOVABLE PROPERTY
• 1. General Developments
• 2. Specific Issues
• Chapter Five: Pilot Judgments
• A. INTRODUCTION
• B. ROLE OF PRECEDENT
• C. EMERGENCE OF THE CONCEPT
• 1. The Broniowski Case
• 2. The Case of Hutten-Czapska
• 3. The Viasu Case
• D. FEATURES AND CONTROVERSIES OF THE CONCEPT
• 1. Introduction
• 2. In Search of a Definition
• 2.1. A More Restrictive Approach
• 2.2. A Broader Approach
• 3. Characteristic Features
• 4. Controversies
• Chapter Six: Bank Deposits
• A. INTRODUCTION
• B. DEVELOPMENTS
• 1. Specific Problems and Approaches
• 2. Blocking of Assets
• 3. Bank Deposits in Successor-States of the Former Yugoslavia
• Part Three: Prospects
• Chapter Seven: Advancing the Mechanism
• A. POSITIVE OBLIGATION
• 1. General Rule
• 2. Physical Protection
• 3. Obligation to Recover
• B. PROCEDURAL GUARANTEES
• Chapter Eight: Dilemmas and Challenges
• A. CONTINUING VIOLATION
• B. TOWARDS SOCIAL RIGHTS
• Chapter Nine: Conclusions
• List of Cases
• Bibliography