Control of use
If there is no formal procedure for deprivation, it is necessary to scrutinise the matter regardless of the first impressions of the situation, since the ECHR guarantees an effective and practical respect of the rights. If interference with the right to property is of lower priority than a de facto deprivation of the property – since in principle the holders can still dispose of their property and can use, it but the State’s act is intended for the deprivation of property, which creates a legal uncertainty questioning any investment in the property – then the matter relates to an interference with the peaceful enjoyment of property. Therefore, the restriction on the use of property is restricted not only through the imposition of a law or other formal State act but also through actions taken by the State authorities.1930
If the legislature adopts a regulation dealing with the use of property without depriving the owner of the possibility of using the property, then the matter does not relate to the deprivation but to a regulation dealing with the use.1931
Examples of restrictions on the use of property:
■ State program for payment of old foreign currency savings;1932
■ State program for payment of compensation for war-related damage;1933
■ Legal regulations to establish a faculty;1934
■ Transformation into certificates of unpaid claims based on the right to pension;1935
■ Servitude rights over land/real property;1936
■ Public decision on the program for privatisation of a State owned company;1937
■ Protection of the status as member of the household of the former occupancy right holder who acquired the ownership right to the apartment in the privatisation procedure;1938
■ Occupancy right over a private property;1939
■ Partial expropriation;1940
■ Issuance of necessary permissions allowing the removal of measures imposing restrictions on the right to property (for example, relocation of a planned road going over the appellant’s land);1941
■ Urban-planning permit for the legalisation of an illegally constructed building.
Footnotes
CH/99/2425 et al.-A&M, paragraph 139 et seq., with reference to the ECtHR, Van Droogenbroeck v. Belgium, 24 June 1982, Series A no. 50, paragraph 38, and Airey v. Ireland, 9 October 1979, Series A no. 32, paragraph 24.
CH/98/375 et al., paragraph 1215 et seq.; CH/02/12468 et al., paragraph 172 et seq.
CH/98/375 et al., paragraph 1215 et seq.
CH/02/12468 et al., paragraph 172 et seq.
CH/00/6183 et al.-A&M, paragraph 191.
CH/03/14880, paragraph 35 et seq.
AP 1292/05, paragraph 22; AP 1048/04, paragraph 28.
AP 100/04, paragraph 33.
U 131/03, paragraph 34 et seq.
AP 647/04, paragraph 23.
AP 528/04, paragraph 24 et seq.
AP 678/04, paragraph 21; AP 1305/05, paragraph 11 et seq.