Article title Protection of Property by the European Court of Human Rights and Horizontal Effect
Authors

PhD Law, Associate Professor, Associate Professor at the Department of Civil Law No.1, Yaroslav Mudryi National Law University (Kharkiv, Ukraine) ORCID ID: https://orcid.org/0000-0003-1968-3051  karnaukh.bogdan@gmail.com

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 5/2021
Сторінки [149-166]
Annotation

The modern doctrine of property law in Ukraine shall be reconsidered from the perspective of understanding the right to property as.

The purpose of the article is (a) to outline the approach of the European Court of Human Rights to addressing applications under Article 1 of Protocol № 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms and (b) to analyse the horizontal effect of the right peaceful enjoyment of property.

While deciding on the applications pertaining to protection of property, the ECtHR utilizes a sophisticated algorithm comprising a sequence of yes-or-no questions, where the transition to each subsequent question is preconditioned by affirmative answer to the previous one: (1) Was there any property rights? (2) Has there been an interference with property rights? (3) Was the interference lawful? (4) Did the intervention have a legitimate aim? (5) Was the interference proportionate to the aim pursued?

According to this algorithm, if the answer to the first four questions is “yes” and to the last, fifth, is “no”, the ECtHR finds that the respondent State has violated applicant’s right to peaceful enjoyment of property. In all other cases there is no violation.

If, within the jurisdiction of the State, an individual may infringe the property rights of another without any liability for the former and any remedy for the latter, the Statemay be reasonably blamed for it, since the situation may indicate that either there is no legislation prohibiting the infringement, or the cases of infringement are not investigated or the courts do not properly apply the provisions of the respective legislation. Correcting these defects of “State’s work” certainly has an impact on horizontal relations and is perceived by private persons in their relations with each other.

Tectonic shift in the national doctrine of property rights manifests itself in the new perspective on property: the property is no longer seen as either an exclusively civil or an exclusively national legal institution. Like a number of other private law institutions, property is being constitutionalized. Any dispute over property rights receives a new perspective in terms of fundamental human rights. And it is true not only with regard to vertical relations of individual vis-à-vis public authority, but also with regard to relations of private persons between themselves (horizontal). The horizontal effect of human rights is achieved through the concept of positive obligations of the state being applied by the Supreme Court and by the implementation of the proportionality test in domestic jurisprudence.

 

Keywords property; horizontal effect; constitutionalization of private law; possessions; legitimate expectations
References

Bibliography

Edited books

1. Barkhuysen T, Lindenbergh S (eds), Constitutionalisation of Private Law (Martinus Nijhoff Publishers 2006) (in English).

2. Kriebaum U, Schreuer C, ‘The Concept of Property in Human Rights Law and International Investment Law’ in Breitenmoser S (ed), Liber Amicorum Luzius Wildhaber, Human Rights Democracy and the Rule of Law (Nomos Publishers 2007) (in English).

3. Spasybo-Fatieieva I (red), Pravomirni ochikuvannia: zbirnyk statei (EKUS 2020) (in Ukrainian).

 

Journal articles

4. Alexander G S, ‘Property as a Fundamental Constitutional Right? The German Example’ (2003) 4 Cornell Law Faculty Working Papers 19 (in English).

5. Frantziou E, ‘The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality’ (2015) 21 European Law Journal 657 (in English).

 6. Kanalan I, ‘Horizontal Effect of Human Rights in the Era of Transnational Constellations: On the Accountability of Private Actors for Human Rights Violations’ (2016) European Yearbook of International Economic Law 423 (in English).

 7. Lottie L, ‘The Horizontal Effect of International Human Rights Law in Practice’ (2018) 5 European Journal of Comparative Law and Governance 5 (in English).

8. Radin M J, ‘Property and Personhood’ (1982) 34 Stan. L. Rev. 957 (in English).

9. Sermet L, ‘The European Convention on Human Rights and property rights’ (1999) 11 Human rights files 55 (in English).

 

Other sources

 10. Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights. Protection of property. Updated on 31 August 2020 (Council of Europe/European Court of Human Rights, 2020) (in English).