Dogmatic particularities of the right to property

The term “property” is a normative term. This means that the legislator needs to define what is to be considered as property. Unlike the notion of marriage which, let us say, can be regarded as a social creation regardless of the legislation regulating it, the subject, scope and limits of the term “property” can be determined by legal regulations only. The German Federal Constitutional Court describes this as follows:

“The precise authorities of an owner at a moment derive from […] a total number of applicable legal regulations dealing with the issue of ownership at that moment. If that total number shows that the owner has not an authority, then this does not form part of his ownership right. How and in which form the legislator is to exclude that authority from the ownership right is nothing else but the question of legislative technique. If the legislator defines the original […] position of ownership right broadly and it excludes certain authorities by imposing another regulation, then the holder of the right has a restricted legal position from the very beginning.”¹⁷⁵⁵

Article 14, paragraph 1 of the German Basic Law (the Constitution) shows this dogmatic particularity more clearly than Article 1 of Additional Protocol No. 1 to the ECHR. It reads as follows: “The ownership right and inheritance right are guaranteed. The content and restrictions thereof shall be determined by the law”.¹⁷⁵⁶ Article 14 of the Basic Law protects therefore the ownership right (against the legislature’s interventions as well) although, at the same time, it leaves for the legislator to define the content of and restrictions on the right. Similarly, the Strasbourg case-law leads to the conclusion that this court holds that every individual legal system has the competence to define what the property right is: the individual has the task to secure his/her legal position in compliance with the relevant laws (sic).¹⁷⁵⁷ According to Article 1 of Additional Protocol No. 1 to the ECHR, the term “property” is considered an autonomous term, so that a legal position can be considered as proprietary according to the ECHR even if the national legislation does not consider that position as such.¹⁷⁵⁸ This ambivalent position of the legislature, which is, on the one hand, bound by the right to property,¹⁷⁵⁹ and, on the other hand, has to define the content and scope of that right by itself, shows to what extent it is necessary to set absolute constitutional boundaries within the ordinary national legislation. According to the German dogma,¹⁷⁶⁰and case-law of the BiH Constitutional Court as well, this restriction imposed by the legislature in shaping the laws is covered by the term of institutional guarantee (“InstitutsgarantieI”). It can be included in a systemic manner in the restriction on justification for not interfering with property rights (it is called the restriction of restriction in the German dogma – Schranken-Schranke).