Interference with the right to property

The Constitutional Court and the Human Rights Chamber have interpreted the content of protection and the circumstances under which the right to property can be restricted by referring to the case-law of the European Court of Human Rights¹⁸⁹⁴ according to which Article 1 of Additional Protocol No. 1 to the ECHR contains three rules:

(1) The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property;

(2) The second rule contained in the second sentence of the same paragraph, covers deprivation of possession and makes it subject to certain conditions (lawfulness, general interest, proportionality);

(3) The third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in the general interest in accordance with the law.

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 the peaceful enjoyment of property and should therefore be construed in light of the general principle enunciated in the first rule.¹⁸⁹⁵ A distinction between deprivation and (extensive) control of the use of property needs to be made, since Article 1 of Additional Protocol No.1 to the ECHR contains in principle different requirements to be fulfilled in both types of interventions.¹⁸⁹⁶