Development of the Right to Property in the European Convention on Human Rights

Henrik Jorem, Ph.D. (2023), is a human rights scholar and attorney from Norway with more than 10 years of experience in private practice.

• ContentsSeries Editors’ PrefaceAcknowledgementsPART 11 Introduction1 Jurisprudential Developments in the Right to the Peaceful Enjoyment of Property2 Structure and Outline3 Selection of Materials2 The Genesis of Protocol 1 Article 11 The Convention2 The First Additional Protocol3 Conclusion3 Aspects of the Court’s Teleology1 Introduction2 The Principle of Effectiveness3 Evolutive Interpretation4 The Convention’s Fundamental Values4.1 Human Dignity4.2 Democracy and Political Freedom4.3 The Rule of LawPART 24 The Autonomous Property Concept1 Introduction2 Conceptual Analysis – Property as Rights and Assets2.1 A Substantive Guarantee of the Right to Property2.2 The Two ‘Axes’ of the Property Concept2.3 The Relationship between Property Rights in the Convention and in Domestic Law3 Rights in Property Protected by Protocol 1 Article 13.1 Elements of Ownership3.2 Limited Rights in Property4 Assets Constituting ‘Possessions’ for the Purposes of Protocol 1 Article 14.1 ‘All Kinds of Pecuniary Assets’4.2 The Court’s Approach to Intangible Assets5 Protection of Legitimate Expectations5.1 A Notable Expansion of Protocol 1 Article 1’s Material Scope5.2 Expectations Linked to Existing Property Rights5.3 A Separate Form of Expectations Linked to the Realisation of Claims?5.4 The Rationale for Protecting Legitimate Expectations under Protocol 1 Article 16 Conclusion5 Protection of Whose Property Rights?1 Introduction2 The Starting Point: ‘Every Natural or Legal Person’3 Limitations Derived from the Court’s Jurisdiction4 Limitations Derived from the Convention’s Enforcement Machinery4.1 The ‘Victim’ Requirement4.2 ‘Non-Governmental Organisations’5 Conclusion6 The Merits of the Court’s ‘Three Rules’ Approach1 Introduction: The Notion of Interference in Convention Rights in General and the Right to Property in Particular2 Characteristics of Deprivation of Property3 Control of the Use of Property4 The General Principle5 ConclusionPART 37 The Three Dimensions of the Court’s Justification Assessment8 Substantive Dimension: A Heightened Level of Scrutiny1 Introduction: The ‘Fair Balance’ Requirement, Its Legal Basis and Construction2 A Conceptual Approach to Proportionality2.1 Suitability2.2 Strict Necessity2.3 Proportionality in the Strict Sense2.4 The Structure of the Court’s Substantive Assessment under Protocol 1 Article 13 The Weight of the Public Interest4 Effects on the Applicant4.1 Economic Effects4.2 Non-Economic Effects5 The Issue of Compensation5.1 A Material Factor in the Court’s ‘Fair Balance’ Assessment5.2 The Market-Value Standard5.3 Public Interests Justifying Compensation below Market Value5.4 The Reference to ‘General Principles of International Law’5.5 Compensation for Interference Not Constituting Deprivation6 The Applicant’s Legitimate Expectations and Acceptance of Risk6.1 A Relative Standard of Legal Certainty6.2 The Problem of Retroactive Laws7 The Conduct of the Parties8 Conclusion9 Institutional Dimension: Towards ‘Deeper Subsidiarity’?1 Introduction: The Two Functions of the ‘Legitimate Aim’ Test2 The Margin of Appreciation, Its Legal Basis and Functions3 Arguments for Deferential Review in Cases concerning the Right to Property3.1 Structural Arguments: Proximity, Consensus and Legitimacy3.2 The Nature of the Public Interest4 Conclusion10 Procedural Dimension: Protocol 1 Article 1 as a Guarantee against Arbitrary Interference1 Introduction2 The Principle of Lawfulness3 Legal Certainty4 Access to Effective Proceedings4.1 The Basis and Rationale for Protocol 1 Article 1’s Procedural Safeguards4.2 Availability of Proceedingsbr/>4.3 Effectiveness of Proceedings5 Safeguards against Arbitrariness at the Domestic Level5.1 Fairness in Proceedings5.2 The Quality of the Assessments Made by Domestic Authorities – Revisiting the Court’s Process-Based Review6 ConclusionPART 411 The Evolving Scope and Justification of the Right to Property in the ECHR1 The Court’s Expansive Approach to Protocol 1 Article 1’s Scope of Protection2 The Dynamics of the Court’s Justification Assessment12 The Right to Property and the Rule of Law in the ECHR System1 Contextualising the Developments2 The Court’s Search for Legitimacy in Cases concerning the Right to Property3 The Convention’s Preeminent Object and Purpose 207 Case LawCase LawBibliographyIndex