Fair restriction to individual property rights.A critical analysis of ECtHR’s stance on Public and Private interests in the Regulation of Property
Abstract: The concept of right of property as developed in the course of the twentieth century highlights the need to reconcile individual and collective interests. Accordingly, Article 1 of the First Protocol to the European Convention on Human Rights (Art. P1-1), which guarantees the right to the peaceful enjoyment of possessions, allows for “justified” restrictions imposed on property rights to uphold the use of property in accordance with the general interest. The paper illustrates how the ECtHR, by adopting the principle of proportionality as general standard of judicial review, took upon itself whether States succeed in striking a fair balance between “the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights”. On the basis of the study of the relevant ECtHR case law, the paper claims that the Court usually pays little attention to the analysis of the public interest side of the balancing test. The ECtHR is concerned with the burden imposed on the owner, rather than with the justifications for the restrictions. This paper, thus, argues for a different approach to the principle of proportionality by the ECtHR jurisprudence in cases involving property issues, arguing that it is used not so much to balance the two sides of scale, but rather as a tool, which is calibrated to the values underlying the Convention, to “weigh” States interferences with the enjoyment of property rights protected under Art. P1-1.