Positive obligations to protect the right to property

Article 1 of Additional Protocol No.1 to the ECHR stipulates not only the obligation of the State not to interfere arbitrarily with the individual’s right to property but also, in conjunction with Article 1 of the ECHR, the positive obligation of the State to protect the individual’s right effectively.¹⁸⁴⁸ In the decision Whiteside v. The United Kingdom, the EComHR imposed on the State a positive obligation of protection in another context. This is the State’s obligation to take adequate measures to protect the individual against the interference with property rights by third persons, i.e., private persons whose activities cannot be imputed to the State.¹⁸⁴⁹ Here, the EComHR refers to a special obligation of the State known as “Ausstrahlungswirkung” in the German dogma at a previous time and as the obligation to protect today.¹⁸⁵⁰ So far the European Court of Human Rights has not found that a violation of property rights occurred because the national laws did not secure an effective protection of the property right. In three parallel applications against Italy, which were filed for an excessive length of the proceedings, the European Court of Human Rights did not exclude the violation although it did not deal with it since it found a violation of the right to a hearing within a reasonable time.¹⁸⁵¹ It does seem that such cases of insufficient legal protection should be classified under the right of access to a court (Article 6 of the ECHR) and the right to an effective legal remedy (Article 13 of the ECHR).

For example, in Case No. U 18/00 the BiH Constitutional Court found a violation of both rights and went beyond the European Court of Human Rights by holding that the right to property was affected too (and violated – see details on p. 576). In particular, the Court has held that the courts did not make it possible for the individual to exercise his rights. This is reminiscent of the procedural effects of protection of property rights, known as “Verfahrensgarantie”¹⁸⁵² in German constitutional law. In the aforementioned Case No. AP 160/03, the BiH Constitutional Court found a violation, since the appellant could not prove ownership before the Court due to an error in the land books.

By referring to the case-law of the European Court of Human Rights with regards to the protection of lawful protests against the attacks of opponents, the Human Rights Chamber has held that Article 1 of Additional Protocol No. 1 to the ECHR stipulates for the State the obligation to effectively protect the individual who was repossessing his apartment against the resistance of an unlawful possessor during the procedure of enforcement of a decision on eviction.¹⁸⁵³