At the African level, the African Commission found in one of its decisions that the sealing of the premises of two magazines violated the right to property under the African Charter (Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v. Nigeria , communications 105/93, 128/94 and 130/94, also discussed under the Right to Freedom of Opinion and Expression). The African Commission stated the following:

77. The government did not offer any explanation for the sealing up of the premises of many publications. Those affected were not previously accused in a court of law, of any wrongdoing. The right to property necessarily includes a right to have access to property of one’s own and the right not for one’s property to be removed. The Decrees which enabled these premises to be sealed up and for publications to be seized cannot be said to be “appropriate” or in the interest of the public or the community in general. The Commission holds a violation of Article 14. In addition, the seizure of the magazines for reasons that have not been shown to be in the public need or interest also violates the right to property.

Sealing of premises or other forms of seizure have also been seen by the European Court as an interference with the right to property. In the following case, the Holy Monasteries v. Greece , the applicant monasteries had accumulated extensive property acquired by donation before the formation of the Greek State in 1829. A great percentage of this property had already been expropriated during the first years of existence of the Greek State. The management that remained in their ownership was to be exercised by a church institution, whose board members were appointed by the Holy Synod. A new law modified the rules concerning the management, administration and representation of all monastic estates. These tasks were assigned to a body whose composition was altered in that the majority of its members were to be appointed by the state. The state, deemed to be the owner of such agricultural and forest property, was automatically given the use and the possession of it and it deprived and expropriated the monasteries’ property in the public interest. The European Court of Human Rights found that only those monasteries that had never agreed on any transfer of property rights had had their right to property violated. Such property is also protected if the property rights are not protected by formal title (some of the monasteries had been in possession of the land for more than 500 years but had no formal title papers).

The Holy Monasteries v. Greece

European Court of Human Rights

Application Nos. 13092/87 and 13984/88

Judgement of 9 December 1994

Keywords: property - compensation - deprivation - general interest, proportionality

[?]

AS TO THE LAW

[?]

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)

52. The applicant monasteries complained of the transfer of part of their real property to the State, and of the management of it by the ODEP and thereafter by the Greek Church under Laws nos. 1700/1987 and 1811/1988. They relied on Article 1 of Protocol No. 1 (P1-1), [?]

53. The Government and the Commission did not accept this argument.

A. Preliminary remarks

54. The applicant monasteries essentially complained that Laws nos. 1700/1987 and 1811/1988 were incompatible with the Convention. The Government pointed out that to date no practical measures had been taken to apply the Laws to the monasteries.

55. In cases arising from individual petitions made under Article 25 (art. 25) the Court’s task is not to review the relevant legislation in the abstract; it must as far as possible examine the issues raised by the case before it (see, among many other authorities, the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 24). To that end in the instant case, it must examine the above-mentioned Laws in so far as the applicant monasteries objected to their consequences for their property.

Such consequences have already begun to be felt on account of the special nature of some of the provisions of Law no. 1700/1987, in particular section 3 (see paragraph 25 above), and because the Law has begun to be applied inasmuch as ministerial circulars have been issued and administrative decisions taken (see paragraphs 39 and 43 above).

The Court notes that the applicant monasteries’ agricultural and forest property is now governed by two parallel sets of legal rules: the rules in Law no. 1700/1987, governing the properties of the monasteries of Ano Xenia, Agia Lavra Kalavriton, Metamorphosis Sotiros, Chryssoleontissa Eginis and Mega Spileo Kalavriton, and those in Law no. 1811/1988, governing the properties of the monasteries of Asomaton Petraki, Ossios Loukas and Phlamourion Volou. It therefore considers it necessary to distinguish between three monasteries, which signed the agreement of 11 May 1988, and those which did not. [?]

B. Position of the monasteries not parties to the agreement of 11 May 1988

1. Whether there has been an interference with the right of property and determination of the relevant rule under Art. P1-1

56. As explained in the Court’s case-law, Article 1 (P1-1), which guarantees in substance the right of property, comprises three distinct rules (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98-B, p. 29, para. 37). The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest.

The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule.

58. The Court considers that by creating a presumption of State ownership, section 3(1)(A) shifts the burden of proof so that it now falls on the applicant monasteries, which can only assert their ownership of the land in issue if it derives from a duly registered title deed, from a statutory provision or from a final court decision against the State. Section 3(1)(A) taken together with section 1(1) thus deprives them of the possibility of relying, in order to adduce proof to the contrary, on all the means of acquiring property provided for in Greek law and by which the applicant monasteries possibly accumulated their property, including adverse possession and even a final court decision against a private individual. [?]

59. In the Government’s submission, several tracts of the relevant land in reality belonged to the State, and the applicant monasteries were occupying them as mere possessors. The Supreme Administrative Court had, moreover, in its judgment of 7 December 1987 (see paragraph 31 above), held that the provisions of Law no. 1700/1987 did not deprive them of their property because it followed from them that the property did not belong to the monasteries in the first place.

60. It is not feasible for the Court to undertake to determine for itself which of the disputed tracts of land can be said under Greek law to belong in reality to the State. It notes, however, that the applicant monasteries, which are primordial constituent parts of the Greek Church and were established long before the creation of the Greek State, accumulated substantial immovable property over the centuries.

Undoubtedly, title deeds acquired during the Byzantine and Ottoman empires have been lost or destroyed. In respect of such land occupied for so long, even if without any legal title, the period of possession required in order that adverse possession might be relied upon both against the State and against third parties had certainly been completed by the time Law no. 1700/1987 came into force. On this point the Court attaches particular importance to the acquisition of property by adverse possession because there is no land survey in Greece and it was impossible to have title deeds registered before 1856 and legacies and inheritances registered before 1946 (see paragraph 24 above).

61. The State, deemed to be the owner of such agricultural and forest property under subsection (1)(A) of section 3, is automatically given the use and the possession of it, pursuant to subsection (1)(B) of the same section (see paragraph 25 above). In the Court’s opinion, that is not merely a procedural rule relating to the burden of proof but a substantive provision whose effect is to transfer full ownership of the land in question to the State.

62. The Government emphasised that the wording of section 3(1)(B) went no further than to indicate in the abstract that there were legal bases for such possession. Possession, however, was not a fictitious state of affairs; so long as the State did not assume physical authority over the land in dispute (and it had not done), it could not exercise rights derived from possession and use. They cited as evidence section 4 of the Law, which required any holder of the land to hand it over to the State.

However that might be, the Government argued, there could not be any loss of use and possession until such time as an administrative eviction order was served. Even in that case, section 4 afforded the applicant monasteries effective protection, either through proceedings for judicial review of such an order, during which the courts would also verify the monasteries’ rights derived from adverse possession, or through a court action to establish ownership under Articles 1094-1112 of the Civil Code (see paragraph 26 above).

63. The Court cannot accept the Government’s submissions on this point. It notes that section 4 of Law no. 1700/1987 amounts to a technical provision designed to implement section 3 of the Law. In its first subsection, section 4 allows the applicant monasteries a period of two months in which to hand over the land in issue to the head of the appropriate agricultural or forestry department, failing which the latter is empowered to make an administrative eviction order. As to the remedies provided in subsections (4) and (7), the first of them has no suspensive effect, while it is a prerequisite of the second that the plaintiffs should have voluntarily ceded their property or that they should not have availed themselves of the first remedy within the time allowed.

64. The Government relied on the fact that none of the applicant monasteries had to date transferred the property in issue to the State and no administrative eviction order had been served on any of the monasteries, as the decree which was to lay down the detailed arrangements for implementing sections 3 and 4 (section 4(9) of the Law) had still not been issued. Having regard to the friendly settlement concluded between the Greek Church and the State on 11 May 1988 and to the State’s expressed intention of reconsidering the whole matter of Church property (see paragraph 42 above), the provisions of Law no. 1700/1987 had remained a dead letter.

65. The Court observes, however, that none of the five monasteries became a party to the agreement of 11 May 1988 in the year following its ratification by Parliament, as allowed by section 2(1) of Law no. 1811/1988 (see paragraph 33 above). Consequently, the provisions of Law no. 1700/1987 remained applicable to them. The fact that no administrative eviction order has yet been issued is no guarantee that none will be issued in the future, particularly in view of the circulars of 5 January and 20 February 1989 (see paragraph 39 above), which are still in force, and of the administrative authorities’ attitude (see paragraph 43 above) after the agreement was concluded.

66. That being so, there has been an interference with the applicant monasteries’ right to the peaceful enjoyment of their possessions which amounts to a “deprivation” of possessions within the meaning of the second sentence of the first para. of Article 1(P1-1).

2. “In the public interest”

67. The Court must therefore determine whether this deprivation of possessions pursued a legitimate aim “in the public interest”, within the meaning of the second rule under Article 1 (P1-1).

68. The applicant monasteries disputed the legitimacy of the aim of Law no. 1700/1987, contending that it was not designed to convey the expropriated land to farmers who had none, but to allow profitable development of it. Section 2(1) of Law no. 1700/1987 made provision- in the form merely of an optional power - for the transfer of the use of the land in issue to farmers who were - or would in the future be - members of agricultural co-operatives, not to destitute farmers. If the legislature had really been pursuing a social policy, it could have achieved the same result without interfering with the applicant monasteries’ right of property.

69. The Court notes that the explanatory memorandum to the bill, submitted to Parliament, sets out the reasons for the impugned measure: to end illegal sales of the relevant land, encroachments on it and the abandonment or uncontrolled development of it (see paragraph 24 above). The optional nature of the transfer of the use of the land to farmers or agricultural co-operatives (section 2(1) of the Law – see paragraphs 25 and 68 above) and the inclusion of public bodies among the beneficiaries of such transfers (section 2(1) of the Law) might inspire some doubt as to the reasons for the measures, but they cannot suffice to deprive the overall objective of Law no. 1700/1987 of its legitimacy as being “in the public interest”.

3. Proportionality of the interference

70. An interference with peaceful enjoyment of possessions must strike a “fair balance” between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights (see, among other authorities, the Sporrong and Lönnroth v. Sweden    judgment of 23 September 1982, Series A no. 52, p. 26, para. 69). The concern to achieve this balance is reflected in the structure of Article 1 (P1-1) as a whole (ibid.), including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence (see paragraph 56 above). In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see the James and Others judgment previously cited, p. 34, para. 50).

71. 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 (P1-1) only in exceptional circumstances. Article 1 (P1-1) 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 (see the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, pp. 50-51, para. 121).

72. The applicant monasteries alleged that the provisions of Law no. 1700/1987 did not satisfy the condition of proportionality.

73. The Commission considered that exceptional circumstances – such as the ways in which the property was acquired and used, the monasteries’ dependence on the Greek Church and the Church’s dependence on the State - justified the absence of compensation.

74. The Court does not agree with this assessment.

In 1952 the Greek legislature took measures to expropriate a large portion of monastery agricultural property. In 1952 as in 1987 the monasteries no longer discharged the same social, educational and cultural functions they had assumed before the Greek State was established (see paragraph 6 above). The legislature nevertheless provided for compensation of one-third of the real value of the expropriated land (see paragraph 9 above). However, there is no similar provision in Law no. 1700/1987.

The five per cent provided for in return for the grant to farmers of a right to use the land in issue would be paid, after the transfer of ownership to the State, to the private-law entity to be established under section 9 of the Law for the needs of the national education service (subsection (1)(B) of section 3 - see paragraphs 25 and 28 above). The power to grant land to monasteries which do not have sufficient immovable property “solely for the purposes of cultivation by the monks themselves” (section 3(3) of the Law) and the budgetary appropriation provided for in section 10 (see paragraph 28 above) cannot be regarded as payment of compensation.

75. By thus imposing a considerable burden on the applicant monasteries deprived of their property, Law no. 1700/1987 does not preserve a fair balance between the various interests in question as required by Article 1 of Protocol No. 1 (P1-1).

There is therefore a breach of that Article (P1-1) in the case of the five applicant monasteries which did not sign the agreement of 11 May 1988.

Comment

The case is relevant as the distinction between public and private property was very clear under Greek law, which is the case in many other countries. There even seemed an interest to leave the situation rather unclear. The case shows how in human rights law the actual rights are of more importance than the formal situation. The existence of a formal land title does not matter as much as a clear indication that the applicants had been the owner of the lands for many years. The case is also relevant as it raises the following question: May a state take, without compensation, from the rich to give to the poor? In fact the Greek Government was maintaining that the land would be used to help the landless and other poor. The government even maintained that they would provide some compensation in the form of stipends, to be decided on a later date. In fact the European Court did not accept the taking of the land for social purposes without compensation. Moreover such compensation, which would depend on the discretion of government authorities, to be decided on a later date, was also unacceptable.

This case does not mean however that land reform is not permissible under the European Convention . The state may raise taxes or contributions as the  ECHR expressly stipulates or try many other forms of incentives or disincentives to stimulate land reform. But it may not take land without a proportional form of compensation.

The following case, Ivcher Bronstein v. Peru , is illustrative of the way in which a government may try to ‘silence’ its political opponents by depriving them of their property. The applicant, a naturalised Peruvian and owner of a TV station that had broadcast various programmes denouncing grave violations of human rights and corruption, was stripped of his Peruvian nationality, a decision that had the effect of disqualifying him for ownership of a TV station. The applicant twice appealed the decision, but he failed each time. The TV station was subsequently taken over by different owners, who modified the station’s editorial policies and refused entry to the premises to the journalists who had worked on a programme that had been particularly critical. The case underlines the very close interrelationship between various human rights, such as the freedom of expression and the right to property (also discussed under the right to freedom of opinion and expression, Broadcast/Film Regulation ).

Ivcher Bronstein v. Peru

Inter-American Court of Human Rights

Series C No. 74

Judgement of 6 February 2001

Keywords: property - expression

[?]

The considerations of the Court

[?]

122. “Property” may be defined as those material objects that may be appropriated, and also any right that may form part of a person’s patrimony; this concept includes all movable and immovable property, corporal and incorporeal elements, and any other intangible object of any value.

123. From Mr. Ivcher’s testimony, it may be concluded that, in 1985, he owned shares in the Company and that, in 1986, they represented 49,53% of the capital. By 1992, his participation amounted to 53,95%, and he was therefore the Company’s majority shareholder. Obviously, this participation in the share capital could be evaluated and formed part of its owner’s patrimony from the moment of its acquisition; as such, that participation constituted a property over which Mr. Ivcher had the right to use and enjoyment

124. To determine whether Mr. Ivcher was deprived of his property, the Court should not restrict itself to evaluating whether a formal dispossession or expropriation took place, but should look beyond mere appearances and establish the real situation behind the situation that was denounced.

125. It has been proved that in July 1997, Mr. Ivcher’s nationality title was annulled. Based on this act and, pursuant to the legislation that required that owners of telecommunications media companies should be of Peruvian nationality, in August 1997, Judge Percy Escobar: a) ordered a precautionary measure that suspended the exercise of Mr. Ivcher’s rights as majority shareholder and chairman of the Company and revoked his appointment as a director the Company; b) ordered that an extraordinary general meeting of the shareholders of the Company should be judicially convened in order to elect a new board and prevent the transfer of Mr. Ivcher’s shares, and c) granted the minority shareholders provisional administration of the Company until a new board was appointed (supra para.76.s.3).

126. The consequences of the precautionary measure ordered were immediate and evident: they prevented Mr. Ivcher Bronstein from acting as director and chairman of the Company, so that he could not continue directing the editorial line of Channel 2; he was also deprived of the possibility of taking part in board meetings, where the minority shareholders took important decisions, such as removing the members of the board, including Mr. Ivcher, appointing new members and even increasing the Company’s capital; finally, he could not transfer his shares, receive dividends from them and exercise the other rights that corresponded to him as a shareholder of the Company.

127. The International Court of Justice has made a distinction between the rights of a company’s shareholders from those of the company itself, indicating that domestic legislation grants shareholders specific direct rights, such as receiving the agreed dividends, attending and voting at general meetings and receiving part of the assets of the company when selling their shares. This Court observes that the said precautionary measure obstructed Mr. Ivcher’s use and enjoyment of such rights; also, when his wife, as co-owner of her husband’s shares, tried to enforce those rights, the measures she took were ineffective. Consequently, the Court concludes that Mr. Ivcher was deprived of his property, in violation of the provisions of Article 21.2 of the Convention.

128. The Court must now determine whether the above-mentioned deprivation was in accordance with the American Convention . In order for the deprivation of the property of a person to be compatible with the right to property embodied in the Convention, it should be based on reasons of public utility or social interest, subject to the payment of just compensation, and be restricted to the cases and according to the forms established bylaw.

129. In the instant case, there is no evidence or argument to confirm that the precautionary measure ordered by Judge Percy Escobar was based on reasons of public utility or social interest; to the contrary, the proven facts in this case coincide to show the State’s determination to deprive Mr. Ivcher ofthe control of Channel 2, by suspending his rights as a shareholder of the Company that owned it.

130. Moreover, there is no indication that Mr. Ivcher has been compensated for the deprivation of the enjoyment and use of his property, or that the measure that affected him was adopted according to the law. It must also be recalled that, in this judgement, the Court has concluded that the procedures relating to the restriction of Mr. Ivcher’s rights with regard to the Company, including the procedure by which Judge Percy Escobar ordered the precautionary measure, did not satisfy the minimum requirements of due legal process (supra para. 115). In this respect, the Court observes that when a procedure is conducted in violation of the law, the corresponding legal consequences should also be considered illegal. Consequently, the deprivation of the use and enjoyment of Mr. Ivcher’s rights relating to his shares in the Company was inappropriate, and this Court considers that it was arbitrary, and, therefore, not in accordance with the provisions of Article 21 of the Convention.

131. In view of the foregoing, the Court concludes that the State violated the right to private property established in Article21.1 and 21.2 of the American Convention, with regard to Baruch Ivcher Bronstein.

Comment

This case stands as a contrast to the case of Media Rights et al. v. Nigeria where the Government of Nigeria simply sealed up the premises of various media in order to silence the opposition. Unfortunately, methods such as threatening the press, endangering the lives of journalists, torture and dispossession of land and property are widespread means of suppressing opposition.

In the following case, Öneryildiz v. Turkey, the applicant, Masallah Öneryildiz, and twelve members of his family were living in the shanty town of Hekimbasi Ümraniye (Istanbul). The shanty town of Hekimbasi comprised a collection of slums haphazardly built on land surrounding a rubbish tip which had been used jointly by four district councils since the 1970s and was under the authority and responsibility of the main City Council of Istanbul. An expert report drawn up on 7 May 1991 at the request of the Üsküdar District Court, to which the case had been referred by the Ümraniye District Council, drew the authorities’ attention to, among other things, the fact that no measure had been taken with regard to the tip in question to prevent a possible explosion of the methane gas being given off by the decomposing refuse. The report gave rise to a series of disputes between the mayors concerned. Before the proceedings instituted by either of them had been concluded, a methane-gas explosion occurred on 28 April 1993 on the waste-collection site and the refuse erupting from the pile of waste buried eleven houses situated below it, including the one belonging to the applicant, who lost nine members of his family. The European Court focused on interference affecting enjoyment of life and property, and negligence of the government, which caused death, and destruction of property. The case provides indications as to under what circumstance illegal slum-dwellings can be considered possessions. 

Oneryildiz v. Turkey 

European Court of Human Rights

Application No. 48939/99

Judgement of 18 June 2002

Keywords: property - health - positive obligations – possessions – housing - dwelling

[?]

IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

[?]

B. The Court’s assessment

1. Preliminary observations

138. In the light of the parties’ arguments and the evidence in its possession, the Court notes at the outset that the more general questions raised by the present case, relating, inter alia, to the regularising laws passed in Turkey and the operation of public installations [?] are of general interest and any doubt which may arise as to the measures taken by the national authorities in that area are, in the Court’s opinion, a matter for public and political debate which falls outside the scope of application of Article 1 of Protocol No. 1.

The Court, which must as far as possible confine itself to examining the issues raised by the actual case before it, considers that it does not therefore have to examine those issues.

2. Existence of a “possession”

139. The Court reiterates that the concept of “possessions” in Article 1 of Protocol No. 1 has an autonomous meaning and certain rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see Iatridis v. Greece [GC], no. 31107/96,§ 54, ECHR 1999-II, and Beyeler v. Italy [GC], no. 33202/96,§ 100, ECHR 2000-I).

Although it is true that the determination and identification of a right of property is governed by the national legal system and that the applicant must establish both the exact nature of the right he claims and his prerogative to freely enjoy that right, the Court considers that neither the lack of recognition by the domestic laws of a private interest such as a “right” nor the fact that these laws do not regard such interest as a “right of property”, does not necessarily prevent the interest in question, in some circumstances, from being regarded as a “possession” within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis, Tre Traktörer AB v. Sweden, judgment of 7 July 1989, Series A no. 159, p. 21,§ 53, and Van Marle and Others v. the Netherlands, judgment of 26 June 1986, Series A no. 101, p. 13,§ 40).

The issue that accordingly needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see, among other authorities, ZwierzyDski v. Poland, no. 34049/96,§ 63, ECHR 2001-VI).

140. In that connection the Court notes at the outset that title to the land on which the applicant had built his slum dwelling was vested in the Treasury. The applicant was, moreover, unable to establish that he had any property right or claim in respect of the land in question; neither could he show that he had brought any proceedings of any kind to establish a right of acquisition by adverse possession [?].

The Court therefore considers, like the Government [?], that the fact that the applicant had occupied land belonging to the Treasury for approximately five years cannot amount to a “possession” within the meaning of Article 1 of Protocol No. 1, given that there is no evidence in the file from which to conclude that the applicant was entitled to claim a transfer of title to the land in question under section 21 of Law no. 775 [?] and that in this respect the hopes he might have entertained [?] of no relevance since Article 1 of Protocol No. 1 applies only to a person’s existing possessions and does not guarantee the right to become the owner of property (see Marckx v. Belgium , judgment of 13 June 1979, Series A no. 31, p. 23,§ 50, and ZwierzyDski, cited above,§ 61).

141. That said, the dwelling built by the applicant on the land in question calls for a different assessment.

It is certainly not the Court’s task to determine the legal position with regard to the slum dwelling in question in the light of all the domestic legal provisions; the little evidence it has been able to gather of its own motion shows, however, that the edifice built by the applicant breached the relevant town-planning regulations [?]. That was not contested by the applicant, moreover.

It must be accepted, however, that notwithstanding that breach of the planning rules and the lack of any valid title, the applicant was nonetheless to all intents and purposes the owner of the structure and fixtures and fittings of the dwelling he had built and of all the household and personal effects which might have been in it. Since 1988 he had been living in that dwelling without ever having been bothered by the authorities [?], which meant he had been able to lodge his relatives there without, inter alia, paying any rent. He had established a social and family environment there and, until the accident of 28 April 1993, there had been nothing to stop him from expecting the situation to remain the same for himself and his family.

It should be pointed out that those factors and, inter alia, the noted failure to take adequate measures [?] amounted to implicit tolerance by the authorities of Mr Öneryildiz’s position, enable this case to be distinguished from that of Mrs Chapman (see  Chapman v. the United Kingdom  [GC], no. 27238/95, ECHR 2001-I) in which the applicant, a Gypsy by birth, had been ordered to leave her land on which she had installed her caravan without obtaining the statutory residence permit, as required by domestic law, and had been fined twice before she would leave. In the specific context of that case the Court stated that it would be slow to grant protection, under Article 8 of the Convention, to those who consciously defied the prohibitions of the law and, having regard to the circumstances of that case, it concluded that the judicial measures imposed on the applicant could be regarded as proportionate to the legitimate aim of protecting the “rights of others” through preservation of the environment [?].

142. In short, the Court considers that the dwelling built by the applicant and his residence there with his family represented a substantial economic interest. That interest, which the authorities allowed to subsist over a long period of time, amounts to a “possession” within the meaning of the rule laid down in the first sentence of Article 1§ 1 of Protocol No. 1 (see Iatridis, cited above,§ 55).

3. Whether there was “interference”

143. In the instant case the applicant complained not of an act by the State, but of its failure to act. In his submission, the loss of his possessions was entirely due to the negligent omissions of the authorities. The Government disputed that submission.

144. The Court has long held that, although the essential object of many provisions of the Convention is to protect the individual against arbitrary interference by public authorities, there may in addition be positive obligations inherent in an effective respect of the rights concerned. It has found that such obligations may arise under Article 2 [?], Article 3 (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3265,§ 102), Article 8 (see paragraphs 65 and 85 above; see, among others,Botta v. Italy , cited above, p. 422,§ 33, and the references made thereto), Article 10 (Özgür Gündem v. Turkey, no. 23144/93,§ 43, ECHR 2000-III) and Article 11 (Plattform “Ärzte für das Leben” v. Austria, judgment of 21 June 1988, Series A no. 139,§ 32).

145. The Court reiterates the key importance of the right enshrined in Article 1 of Protocol No. 1 and considers that the real and effective exercise of that right does not depend merely on the State’s duty not to interfere, but may require positive measures of protection. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. This obligation will inevitably arise, inter alia, where there is a direct link between the measures which an applicant may legitimately expect from the authorities and his enjoyment of his possessions.

146. The Court reiterates that it has already established in the present case the existence of such a causal link with regard to the accident that occurred on 28 April 1993 [?]. It goes without saying that the same is true of the burial of the applicant’s slum dwelling. Accordingly, the Court holds that the accumulation of omissions by the administrative authorities regarding the measures necessary to avoid the risk of a methane-gas explosion and an ensuing landslide [?] also runs counter to the requirement of “practical and effective” protection of the right guaranteed by Article 1 of Protocol No. 1.

Such a situation amounts to a clear infringement of the applicant’s right to peaceful enjoyment of his “possessions” and, for the purposes of the examination of this part of the application, can be regarded as “interference”.

4. Justification of the “interference”

147. Having regard to the foregoing, the Court reiterates that the applicant was definitively deprived of his home and all the possessions used to run his daily family life.

In that connection it merely needs to be pointed out that the negligent omissions of the authorities which resulted in that deprivation were penalised under Turkish administrative and criminal law (see paragraphs 33 and 39 above). The interference in question was thus manifestly in breach of the domestic legislation.

148. This conclusion makes it unnecessary for the Court to take its examination further (see, mutatis mutandis, Iatridis, cited above,§ 62); there has accordingly been a violation of Article 1 of Protocol No. 1.

That being so, the Court must determine in this respect also [?] whether the applicant’s complaint can be deemed to have been addressed at domestic level.

5. Redress for the applicant’s complaints

149. In that respect it notes that, in a judgment of 30 November 1995 [?], the applicant was awarded TRL 10,000,000 (approximately EUR 210) in pecuniary damages for one category of household goods: the administrative court ruled that he could not claim compensation for his dwelling because it could have been destroyed at any time by municipal workers; nor could he claim damages for the loss of any household electrical appliances because the dwelling had not been supplied with electricity. In view of the circumstances of the case, the Court is not satisfied by that assessment.

150. Firstly, the argument that the administrative authorities could have destroyed the applicant’s slum dwelling at any time under the relevant regulations [?] does not carry much weight. The important point is that, during the above-mentioned period, the authorities in question neither took nor envisaged taking any such measure [?], and let the Öneryildiz family enjoy their possessions entirely undisturbed. In that connection it should be pointed out that even if the authorities had envisaged demolishing the slum dwelling, they would have been obliged to make every effort to maintain a fair balance between the demands of the general interest and the requirements of the rights of the individual; the respondent State would then have had to satisfy the Court that such measure constituted a legitimate objective which was in the public interest and that it was proportionate to the aim sought to be achieved for the purposes of Article 1 of Protocol No. 1 (see, among other authorities, Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 23,§ 38). In the instant case the Court presupposes that in the event that such a measure had had to be taken, the authorities would at least have been required to grant the applicant a reasonable length of time in which to defend his interests, or at least salvage as many possessions as possible, including certain fittings which could be removed from his dwelling. The administrative court never considered those questions, however.

In confining its examination to the statements of the defendant authorities, the administrative court also prejudiced the issue by excluding the household electrical appliances from its examination without bothering to enquire as to whether the Kaz?m Karabekir area was connected to the electricity network, despite the probative evidence which militated against the defence put forward by the authorities [?].

151. The Court reiterates, moreover, that the length of the administrative proceedings is also a factor to be taken into account in determining whether there has been adequate compensation for the alleged violation (see Guillemin, cited above, p. 164,§ 54, and  Erkner and Hofauer v. Austria , judgment of 23 April 1987, Series A no. 117, p. 66,§ 76). As the Court has already found above, the applicant’s right to compensation was not recognised within a reasonable time [?].

152. In these circumstances the Court cannot accept that the applicant’s claims for pecuniary damages were carefully and speedily examined with a view to awarding him compensation proportionate to the loss actually sustained, particularly as in the instant case the tribunal of fact did not find the administrative authorities in any way liable in respect of the complaint submitted by the applicant on precisely the loss of his possessions [?].

153. Subject to any subsequent assessment of the applicability of Article 41 of the Convention, the Court considers that neither the amount which might be paid to the applicant if he were to bring enforcement proceedings against the authorities, which to date have not made any payment [?], nor the advantageous terms for repayment of the cost of the house sold to the applicant [?] can suffice to conclude that the national authorities have acknowledged and then afforded redress for the violation alleged.

154. The Court therefore concludes that there has been a breach of Article 1 of Protocol No. 1.

Comment

There are two major reasons for the importance of this case. Firstly the Court takes a strong interest in the protection of those who do not have a full title, and secondly a clear link with the right to health has been confirmed in this case.

In Paragraph 139, which is of importance with respect to the rights of slum dwellers, the Court clearly states that

[?] neither the lack of recognition by the domestic laws of a private interest such as a “right” nor the fact that these laws do not regard such interest as a “right of property”, does not necessarily prevent the interest in question, in some circumstances, from being regarded as a “possession” within the meaning of Article 1 of Protocol No. 1.

The Court continues to draw distinctions between possessions and titles. Someone can have possession of a house or dwelling, even if he or she does not have a secure and full title. This is very important as some 50% of dwellings in urban areas in developing countries lack a full title. The European Court contributes to the important debate on how to bring all those who are outside the law within the sphere of the law, and confirms the government’s responsibilities with respect to those groups. The government responsibilities are substantial and not only of a negative nature.

As the Court explains in paragraph 144, the state responsibilities include a number of positive obligations, including measures to provide adequate protection. It is here that the right to health becomes prominent: the government’s obligation to protect its citizens against health hazards.

Selected additional cases on Interference leading to deprivation or affecting enjoyment: ACHPR: Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v. Nigeria, Communications Nos. 105/93, 128/94, 130/94 and 152/96, Twelfth Activity Report 1998-1999, Annex V. ECHR: Brumrescu v. Romania , Application No. 28342/95, Judgement of 28 October 1999; Katikaridis et al. v. Greece   , Application No. 19385/92, Judgement of 15 November 1996;Akdivar v. Turkey  , Application No. 21893/93, Judgement of 16 September 1996; Chapman v. The United Kingdom, Application No. 27238/95, Judgement of 18 January 2001.