One of the more controversial and complex human rights is the right to property. The right is controversial because the very right which is seen by some as central to the human rights concept is considered by others to be an instrument for abuse. One might say that it is a right that protects the ‘haves’ against the ‘have-nots’. It is complex, because no other human right is subject to more qualifications and limitations and, consequently, no other right has resulted in more complex case-law of, for instance, the supervisory bodies of the ECHR . It is complex also because it is generally regarded as a civil right, even an integrity right; a right which obliges the state to abstain from interfering. At the same time, it clearly displays characteristics of a social right with significant implications for the distribution of social goods and wealth. Moreover, the right to property has major implications for several important social and economic rights such as the right to work, the right to enjoy the benefits of scientific progress, the right to education and the right to housing.
Property has been defined in the case-law of both the European and the Inter-American Courts of Human Rights as ‘any vested right’ or ‘any object capable of having value’. As such the concept of property has an autonomous meaning, often substantially different from national legislation. It may also include rights which result from rent or lease agreements and – under certain conditions – benefits from public relationships, such as public pension schemes. Extensive case-law has been established to protect individuals against abuse of property. The right to property as found in international conventions, however, does not include the right to acquire property.
In the following case, Mayagna (Sumo) Awas Tingni Community v. Nicaragua , a petition was submitted before the Inter-American Commission on Human Rights on behalf of the Mayagna Awas Tingni Community, which lives in the Atlantic coast region of Nicaragua and is made up of approximately 142 families. The applicants denounced Nicaragua for failing to demarcate the Awas Tingni Community’s communal land, and to take the necessary measures to protect the Community’s property rights over its ancestral lands and natural resources. Furthermore, the petitioners denounced the state for failing to guarantee access to an effective remedy for the Community’s property claims. In addition, precautionary measures were requested to prevent the forthcoming concession of 62,000 hectares of tropical forest to be exploited by a company in communal lands. On June 4, 1998, the Inter-American Commission submitted the case to the Inter-American Court of Human Rights. In its judgment of 31 August 2001, the Inter-American Court declared that the state had violated the right to judicial protection enshrined in article 25 of the American Convention on Human Rights and the right to property enshrined in article 21 of the Convention, to the detriment of the members of the Mayagna (Sumo) Awas Tingni Community.
Mayagna (Sumo) Awas Tingni Community v. Nicaragua
Inter-American Court of Human Rights
Application No. 11.577
Judgement of 31 August 2001
Keywords: land - positive obligations - indigenous Peoples
[?]
IX VIOLATION OF ARTICLE 21
Right to Private Property
[ . . ]
Considerations of the Court
142. Article 21 of the Convention declares that:
1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.
2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.
3. Usury and any other form of exploitation of man by man shall by prohibited by law.
143. Article 21 of the American Convention recognises the right to private property. In this regard, it establishes: a) that “[e]veryone has the right to the use and enjoyment of his property”; b) that such use and enjoyment can be subordinate, according to a legal mandate, to “social interest”; c) that a person may be deprived of his or her property for reasons of “public utility or social interest, and in the cases and according to the forms established by law”; and d) that when so deprived, a just compensation must be paid.
144. “Property” can be defined as those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value.
145. During the study and consideration of the preparatory work for the American Convention on Human Rights, the phrase “[e]veryone has the right to the use and enjoyment of private property, but the law may subordinate its use and enjoyment to public interest” was replaced by “[e]veryone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the social interest.” In other words, it was decided to refer to the “use and enjoyment of his property” instead of “private property”.
146. The terms of an international human rights treaty have an autonomous meaning, for which reason they cannot be made equivalent to the meaning given to them in domestic law. Furthermore, such human rights treaties are live instruments whose interpretation must adapt to the evolution of the times and, specifically, to current living conditions.
147. Article 29(b) of the Convention, in turn, establishes that no provision may be interpreted as “restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party”.
148. Through an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29(b) of the Convention -which precludes a restrictive interpretation of rights-, it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua.
149. Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognised and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.
150. In this regard, Law No. 28, published on October 30, 1987 in La Gaceta No. 238, the Official Gazette of the Republic of Nicaragua, which regulates the Autonomy Statute of the Regions of the Atlantic Coast of Nicaragua, states in article 36 that:
Communal property are the lands, waters, and forests that have traditionally belonged to the Communities of the Atlantic Coast, and they are subject to the following provisions:
1. Communal lands are inalienable; they cannot be donated, sold, encumbered nor taxed, and they are inextinguishable.
2. The inhabitants of the Communities have the right to cultivate plots on communal property and to the usufruct of goods obtained from the work carried out.
151. Indigenous peoples’ customary law must be especially taken into account for the purpose of this analysis. As a result of customary practices, possession of the land should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration.
152. As has been pointed out, Nicaragua recognizes communal property of indigenous peoples, but has not regulated the specific procedure to materialize that recognition, and therefore no such title deeds have been granted since 1990. Furthermore, in the instant case the State has not objected to the claim of the Awas Tingni Community to be declared owner, even though the extent of the area claimed is disputed.
153. It is the opinion of the Court that, pursuant to article 5 of the Constitution of Nicaragua, the members of the Awas Tingni Community have a communal property right to the lands they currently inhabit, without detriment to the rights of other indigenous communities. Nevertheless, the Court notes that the limits of the territory on which that property right exists have not been effectively delimited and demarcated by the State. This situation has created a climate of constant uncertainty among the members of the Awas Tingni Community, insofar as they do not know for certain how far their communal property extends geographically and, therefore, they do not know until where they can freely use and enjoy their respective property. Based on this understanding, the Court considers that the members of the Awas Tingni Community have the right that the State
a) carry out the delimitation, demarcation, and titling of the territory belonging to the Community; and
b) abstain from carrying out, until that delimitation, demarcation, and titling have been done, actions that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographical area where the members of the Community live and carry out their activities.
Based on the above, and taking into account the criterion of the Court with respect to applying article 29(b) of the Convention [?], the Court believes that, in light of article 21 of the Convention, the State has violated the right of the members of the Mayagna Awas Tingni Community to the use and enjoyment of their property, and that it has granted concessions to third parties to utilise the property and resources located in an area which could correspond, fully or in part, to the lands which must be delimited, demarcated, and titled.
154. Together with the above, we must recall what has already been established by this court, based on article 1(1) of the American Convention, regarding the obligation of the State to respect the rights and freedoms recognised by the Convention and to organise public power so as to ensure the full enjoyment of human rights by the persons under its jurisdiction. According to the rules of law pertaining to the international responsibility of the State and applicable under International Human Rights Law, actions or omissions by any public authority, whatever its hierarchic position, are chargeable to the State which is responsible under the terms set forth in the American Convention.
155. For all the above, the Court concludes that the State violated article 21 of the American Convention, to the detriment of the members of the Mayagna (Sumo) Awas Tingni Community, in connection with articles 1(1) and 2 of the Convention.
[?]
XII OPERATIVE PARAGRAPHS
173. Therefore, THE COURT,
[?]
2. finds that the State violated the right to property protected by article 21 of the American Convention on Human Rights, to the detriment of the members of the Mayagna (Sumo) Awas Tingni Community [?].
3. decides that the State must adopt in its domestic law, pursuant to article 2 of the American Convention on Human Rights, the legislative, administrative, and any other measures necessary to create an effective mechanism for delimitation, demarcation, and titling of the property of indigenous communities, in accordance with their customary law, values, customs and mores, pursuant to what was set forth in paragraphs 138 and 164 of this Judgment.
4. decides that the State must carry out the delimitation, demarcation, and titling of the corresponding lands of the members of the Mayagna (Sumo) Awas Tingni Community and, until that delimitation, demarcation and titling has been done, it must abstain from any acts that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area where the members of the Mayagna (Sumo) Awas Tingni Community live and carry out their activities, the above in accordance with what was set forth in paragraphs 153 and 164 of this Judgment.
[?]
Comment
The definition used by the Inter-American Court is important in the present case: property is an autonomous concept not only dependent on the definition in national law. A second important element is the acceptance by the Court of common property; property owned by a collective. This had also been agreed upon earlier by, e.g., the European Commission on Human Rights in Könkämä and 38 other villages v. Sweden (Decision of 25 November 1996, p.78), where not only common property rights, but also common exclusive hunting and fishing rights, were recognised as deserving protection as property rights.
Selected additional cases: HRC Ominayak (Lubicon Lake Band) v.Canada , Communication No. 167/1984, Views of 26 March 1990, HRC Länsman (Ilmari) et al. v.Finland, Communication No. 511/1992, Views of 26 October 1994 and Länsman (Jouni E.)et al. v. Finland, Communication No. 671/1995, Views of 30 October 1996
Although there is no property clause in the ICCPR, the Human Rights Committee has decided several cases related to property issues under the notion of culture in Article 27. This is understood to include traditional or otherwise typical forms of economic life, often attached to land and especially to the benefit of indigenous peoples. Hence, indigenous land claims may be addressed through ‘culture’ under ICCPR Article 27. The above judgement by the Inter-American Court can be seen to reflect the Human Rights Committee’s jurisprudence under Article 27. In Mahuika et al. v. New Zealand , the Committee recognised the relevance of Article 1 (self-determination of peoples) to the interpretation of Article 27 when dealing with indigenous peoples’ resource-related claims.
In the following case, the applicants contented that between April and September 1996, the Angolan government rounded up and expelled West African nationals on its territory. These illegal expulsions were preceded by acts of brutality committed against Senegalese, Malian, Gambian, Mauritanian and other nationals. Those affected lost in the process their belongings.
Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues des Droits de l’Homme, Organisation Nationale des Droits de l’Homme au Senegal and Association Malienne des Droits de l’Homme v. Angola
African Commission on Human and Peoples’ Rights
Communication No.159/96
Annual Activity Report 1997-1998, Annex II
Keywords: expulsion - property - non-discrimination
[?]
The Merits:
14. Article 12 paragraph 4 stipulates that a non national legally admitted in a territory of a State party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. Paragraph 5 of the same article stipulates that “the mass expulsion of non nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.”
15. In communication 71/92 cited here above, the Commission indicated that “mass expulsion was a special threat to human rights. A government action specially directed at specific national, racial ethnic or religious groups is generally qualified as discriminatory in the sense that, none of its characteristics has any legal basis or could constitute a source of particular incapacity.
16. The Commission concedes that African States in general and the Republic of Angola in particular are faced with many challenges, mainly economic. In the face of such difficulties, States often resort to radical measures aimed at protecting their nationals and their economic from non-nationals. Whatever, the circumstances may be however, such measures should not be taken at the detriment of the enjoyment of human rights. Mass expulsions of any category of persons, whether on the basis of nationality, religion, ethnic, racial or other considerations “constitute a special violation of human rights”.
17. This type of deportations calls into question a whole series of rights recognised and guaranteed in the Charter; such as the right to property (article 14), the right to work (article 15), the right to education (article 17 paragraph 1) and results in the violation by the State of its obligations under article 18 paragraph 1 which stipulates that “the family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health”. By deporting the victims, thus separating some of them from their families, the defendant State has violated and violates the letter of this text.
18. Article 2 of the Charter emphatically stipulates that “Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.” This text obligates States Parties to ensure that persons living on their territory, be they their nationals or non nationals, enjoy the rights guaranteed in the Charter. In this case, the victims’ rights to equality before the law were trampled on because of their origin.
19. It emerges from the case file that the victims did not have the opportunity to challenge the matter before the competent jurisdictions which should have ruled on their detention, as well as on the regularity and legality of the decision to expel them by the Angolan government. Consequently, Article 7, para. 1 (a) of the Charter was violated.
20. The Commission does not wish to call into question nor is it calling into question the right of any State to take legal action against illegal immigrants and deport them to their countries of origin, if the competent courts so decide. It is however of the view that it is unacceptable to deport individuals without giving them the possibility to plead their case before the competent national courts as this is contrary to the spirit and letter of the Charter and international law. On these grounds, the Commission.
1. Declares that the deportation of the victims constitute a violation of articles 2, 7 paragraph 1 - a, 12 paragraphs 4 and 5 as well as articles 14 and 18 of the African Charter on Human and Peoples’ Rights .
2. With regards to damages for prejudice suffered, it urges the Angolan government and the complainants to draw all the legal consequences arising from the present decision.
Comment
The African Commission raises here some issues of great concern in connection with displacement of people. Millions of people are displaced and as a result lose access to important elements of their properties, notably their land and their homestead, affecting their ability to survive.
The European Court has consistently interpreted the right to property as comprising three distinct rules. This interpretation is useful in gaining a general understanding of the various elements of property. The first rule is of a general nature and lays down 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 under the European Convention , 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, should be interpreted in light of the general principle laid down in the first rule. The Court addressed this issue in Sporrong and Lönnroth v. Sweden (reproduced below). In James et al. v. The United Kingdom (Application No. 8793/79, Judgement of 21 February 1986) the Court reiterated 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.
In the following case, Sporrong and Lönnroth v. Sweden, the government granted the City Council expropriation permits pending expropriation taking effect. During this period construction or alteration of the properties were prohibited, affecting the possibility to sell the estates, thus diminishing the value of the properties. The permits lasted between 10 and 25 years. The European Court found in this case that interference that affects property rights and which cannot be defined as deprivation, nor as limitation, can still be an unjustifiable interference with property rights.
Sporrong and Lönnroth v. Sweden
European Court of Human Rights
Application Nos. 7151/75 and 7152/75
Judgement of 23 September 1982
Keywords: property – housing - proportionality
[?]
9. The two applications relate to the effects of long-term expropriation permits and prohibitions on construction on the Estate of the late Mr. Sporrong and on Mrs. Lönnroth, in their capacity as property owners.
[?]AS TO THE LAW
I. THE ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
[?]
57. In its Marckx judgment of 13 June 1979, the Court described as follows the object of this Article (P1-1): “By recognising that everyone has the right to the peaceful enjoyment of his possessions, Article 1 (P1-1) is in substance guaranteeing the right of property. This is the clear impression left by the words ‘possessions’ and ‘use of property’ (in French: ‘biens’, ‘propriété’, ‘usage des biens’); the ‘travaux préparatoires’, for their part, confirm this unequivocally: the drafters continually spoke of ‘right of property’ or ‘right to property’ to describe the subject-matter of the successive drafts which were the forerunners of the present Article 1 (P1-1).” (Series A no. 31, p. 27, par. 63).
It has to be determined whether the applicants can complain of an interference with this right and, if so, whether the interference was justified.
1. The existence of an interference with the applicants’ right of property
58. The applicants did not dispute that the expropriation permits and prohibitions on construction in question were lawful in themselves. On the other hand, they complained of the length of the time-limits granted to the City of Stockholm for the institution of the judicial proceedings for the fixing of compensation for expropriation (five years, extended for three, then for five and finally for ten years, in the case of the Sporrong Estate; ten years in the case of Mrs. Lönnroth; [?]). They also complained of the fact that the expropriation permits and the prohibitions on construction had been maintained in force for a lengthy period (twenty-three and eight years for the permits; twenty-five and twelve years for the prohibitions; [?]). They pointed to the adverse effects on their right of property allegedly occasioned by these measures when they were combined in such a way. They contended that they had lost the possibility of selling their properties at normal market prices. They added that they would have run too great a risk had they incurred expenditure on their properties, and that if all the same they had had work carried out after obtaining a building permit, they would have been obliged to undertake not to claim - in the event of expropriation - any indemnity for the resultant capital appreciation. They also alleged that they would have encountered difficulties in obtaining mortgages had they sought them. Finally, they recalled that any “new construction” on their own land was prohibited.
Though not claiming that they had been formally and definitively deprived of their possessions, the Sporrong Estate and Mrs. Lönnroth alleged that the permits and prohibitions at issue subjected the enjoyment and power to dispose of their properties to limitations that were excessive and did not give rise to any compensation. Their right of property had accordingly, so they contended, been deprived of its substance whilst the measures in question were in force.
59. The Government accepted that market forces might render it more difficult to sell or let a property that was subject to an expropriation permit and that the longer the permit remained in force the more serious this problem would become. They also recognised that prohibitions on construction restricted the normal exercise of the right of property. However, they asserted that such permits and prohibitions were an intrinsic feature of town planning and did not impair the right of owners to “the peaceful enjoyment of (their) possessions”, within the meaning of Article 1 of Protocol No. 1 (P1-1).
60. The Court is unable to accept this argument. Although the expropriation permits left intact in law the owners’ right to use and dispose of their possessions, they nevertheless in practice significantly reduced the possibility of its exercise. They also affected the very substance of ownership in that they recognised before the event that any expropriation would be lawful and authorised the City of Stockholm to expropriate whenever it found it expedient to do so. The applicants’ right of property thus became precarious and defeasible.
The prohibitions on construction, for their part, undoubtedly restricted the applicants’ right to use their possessions.
The Court also considers that the permits and prohibitions should in principle be examined together, except to the extent that analysis of the case may require a distinction to be drawn between them. This is because, even though there was not necessarily a legal connection between the measures (see paragraph 35 above) and even though they had different periods of validity, they were complementary and had the single objective of facilitating the development of the city in accordance with the successive plans prepared for this purpose.
There was therefore an interference with the applicants’ right of property and, as the Commission rightly pointed out, the consequences of that interference were undoubtedly rendered more serious by the combined use, over a long period of time, of expropriation permits and prohibitions on construction.
2. The justification for the interference with the applicants’ right of property
61. It remains to be ascertained whether or not the interference found by the Court violated Article 1 (P1-1).
That Article (P1-1) comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst 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; it is contained in the second paragraph.
The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable.
(a) The applicability of the second sentence of the first paragraph
62. It should be recalled first of all that the Swedish authorities did not proceed to an expropriation of the applicants’ properties. The applicants were therefore not formally “deprived of their possessions” at any time: they were entitled to use, sell, devise, donate or mortgage their properties.
63. In the absence of a formal expropriation, that is to say a transfer of ownership, the Court considers that it must look behind the appearances and investigate the realities of the situation complained of (see, mutatis mutandis, the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 20, par. 38). Since the Convention is intended to guarantee rights that are “practical and effective” (see the Airey judgement of 9 October 1979, Series A no. 32, p. 12, par. 24), it has to be ascertained whether that situation amounted to a de facto expropriation, as was argued by the applicants.
In the Court’s opinion, all the effects complained of (see paragraph 58 above) stemmed from the reduction of the possibility of disposing of the properties concerned. Those effects were occasioned by limitations imposed on the right of property, which right had become precarious, and from the consequences of those limitations on the value of the premises. However, although the right in question lost some of its substance, it did not disappear. The effects of the measures involved are not such that they can be assimilated to a deprivation of possessions. The Court observes in this connection that the applicants could continue to utilise their possessions and that, although it became more difficult to sell properties in Stockholm affected by expropriation permits and prohibitions on construction, the possibility of selling subsisted; according to information supplied by the Government, several dozen sales were effected [?].
There was therefore no room for the application of the second sentence of the first paragraph in the present case.
(b) The applicability of the second paragraph
64. The prohibitions on construction clearly amounted to a control of “the use of [the applicants’] property”, within the meaning of the second paragraph.
65. On the other hand, the expropriation permits were not intended to limit or control such use. Since they were an initial step in a procedure leading to deprivation of possessions, they did not fall within the ambit of the second paragraph. They must be examined under the first sentence of the first paragraph.
(c) Compliance with the first sentence of the first paragraph as regards the expropriation permits
66. The applicants’ complaints concerned in the first place the length of the time-limits granted to the City of Stockholm, which they regarded as contrary to both Swedish law and the Convention.
67. The 1917 Act did not contain any provisions either on the length of the time-limit during which the expropriating authority had to institute judicial proceedings for the fixing of compensation for expropriation, or on the extension of the validity of permits. According to the Sporrong Estate and Mrs. Lönnroth, it had been the established practice since the entry into force of the Act for the normal time-limit for service of a summons to appear before the Real Estate Court to be one year. Since the time-limits in the present case were as long as five and ten years respectively, it was alleged that there was no legal basis for the original permits; the same was said to apply to the three extensions of the permit affecting the property of the Sporrong Estate.
The respondent State replied that the issue and the extension of the permits were in conformity with Swedish law: it argued that since the Government were entitled to fix the period of validity of the original permit, they were also empowered, in the absence of any provision to the contrary, to extend it.
68. The Court does not consider that it has to resolve this difference of opinion over the interpretation of Swedish law. Even if the permits complained of were not contrary to that law, their conformity therewith would not establish that they were compatible with the right guaranteed by Article 1 (P1-1).
69. The fact that the permits fell within the ambit neither of the second sentence of the first paragraph nor of the second paragraph does not mean that the interference with the said right violated the rule contained in the first sentence of the first paragraph. For the purposes of the latter provision, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, mutatis mutandis, the jugdment of 23 July 1968 in the “Belgian Linguistic” case, Series A no. 6, p. 32, par. 5). The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1 (P1-1).
The Agent of the Government recognised the need for such a balance. At the hearing on the morning of 23 February 1982, he pointed out that, under the Expropriation Act, an expropriation permit must not be issued if the public purpose in question can be achieved in a different way; when this is being assessed, full weight must be given both to the interests of the individual and to the public interest.
The Court has not overlooked this concern on the part of the legislature. Moreover, it finds it natural that, in an area as complex and difficult as that of the development of large cities, the Contracting States should enjoy a wide margin of appreciation in order to implement their town-planning policy. Nevertheless, the Court cannot fail to exercise its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicants’ right to “the peaceful enjoyment of [their] possessions”, within the meaning of the first sentence of Article 1 (P1-1).
70. A feature of the law in force at the relevant time was its inflexibility. With the exception of the total withdrawal of the expropriation permits, which required the agreement of the municipality, the law provided no means by which the situation of the property owners involved could be modified at a later date. The Court notes in this connection that the permits granted to the City of Stockholm were granted for five years in the case of the Sporrong Estate - with an extension for three, then for five and finally for ten years - and for ten years in the case of Mrs. Lönnroth. In the events that happened, they remained in force for twenty-three years and eight years respectively. During the whole of this period, the applicants were left in complete uncertainty as to the fate of their properties and were not entitled to have any difficulties which they might have encountered taken into account by the Swedish Government. The Commission’s report furnishes an example of such difficulties. Mrs. Lönnroth had requested the Government to withdraw the expropriation permit. The City Council replied that the existing plans did not authorise any derogation; the Government, for their part, refused the request on the ground that they could not revoke the permit without the Council’s express consent [?].
The Court has not overlooked the interest of the City of Stockholm in having the option of expropriating properties in order to implement its plans. However, it does not see why the Swedish legislation should have excluded the possibility of re-assessing, at reasonable intervals during the lengthy periods for which each of the permits was granted and maintained in force, the interests of the City and the interests of the owners. In the instant case, the absence of such a possibility was all the less satisfactory in that the town-planning schemes underlying the expropriation permits and, at the same time, the intended use prescribed for the applicants’ properties were modified on several occasions.
71. As is shown by the official statement of reasons accompanying the Bill in which the 1972 Act originated, the Swedish Government conceded that “in certain respects, the existing system is a source of disadvantages for the property owner”:
“Naturally, the mere issue of an expropriation permit often places him in a state of uncertainty. In practice, his opportunities for disposing of his property by selling it, assigning the use thereof or having premises erected thereon are considerably restricted. He may also have difficulty in deciding whether to incur expenditure on upkeep or modernisation. The disadvantages resulting from an expropriation permit are, of course, increased if the judicial proceedings are not set in motion for a long time.”
The 1972 Act takes partial account of these problems. Admittedly, it does not provide for compensation to be granted to property owners who may have been prejudiced by reason of the length of the validity of the permit; however, it does enable them to obtain a reduction of the time-limit for service of the summons to appear before the Real Estate Court if they establish that the fact that the question of expropriation remains pending has caused significantly more serious prejudice [?]. Since the Act was not applicable in the present case (see paragraph 39 above), it could not have been of assistance to the applicants in overcoming any difficulties which they might have encountered.
72. The Court also finds that the existence throughout this period of prohibitions on construction accentuated even further the prejudicial effects of the length of the validity of the permits. Full enjoyment of the applicants’ right of property was impeded for a total period of twenty-five years in the case of the Sporrong Estate and of twelve years in the case of Mrs. Lönnroth. In this connection, the Court notes that in 1967 the Parliamentary Ombudsman considered that the adverse effects on property owners that could result from extended prohibitions were irreconcilable with the position that should obtain in a State governed by the rule of law [?].
73. Being combined in this way, the two series of measures created a situation which upset the fair balance which should be struck between the protection of the right of property and the requirements of the general interest: the Sporrong Estate and Mrs. Lönnroth bore an individual and excessive burden which could have been tendered legitimate only if they had had the possibility of seeking a reduction of the time-limits or of claiming compensation. Yet at the relevant time Swedish law excluded these possibilities and it still excludes the second of them.
In the Courts’s view, it is not appropriate at this stage to determine whether the applicants were in fact prejudiced (see, mutatis mutandis, the above-mentioned Marckx judgement, Series A no. 31, p. 13, par. 27): it was in their legal situation itself that the requisite balance was no longer to be found.
74. The permits in question, whose consequences were aggravated by the prohibitions on construction, therefore violated Article 1 (P1-1), as regards both applicants.
Comment
The above case is often seen as a landmark case as the European Court provided an answer to one of the difficult questions related to property rights: how to deal with cases where one cannot identify a clear deprivation or a clear limitation, but rather a gradual interference with property rights. The approach has since been followed by the European Court in many other cases.
One may note however that in some cases of blatant violations of property rights, the Court did not discuss the details of the interference but simply concluded that there was a violation. A typical example is Akdivar et al. v. Turkey (Application No. 21893/93, Judgement of 16 September 1996) where the property of the applicant was simply burned and erased and the owners were evicted from their homesteads.
Selected additional cases: ECHR: James et al. v. The United Kingdom (Application No. 8793/79, Judgement of 21 February 1986;Matos e Silva v. Portugal (Application no. 15777/89, Judgement of 16 September 1996;Chapman v. The United Kingdom (Application No. 27238/95, Judgement of 18 January 2001).