Jurisprudenţa CEDO privind privarea de proprietate pentru cauză de utilitate publică
ECHR case law regarding the deprivation of ownership for cause of public utility

Summary/Abstract: Considered as a genuine exception to the inviolable nature of property right, expropriation has been and is being considered as the most important and powerful limitation, as well as the most severe restriction on property rights. Expropriation appears as a way of transmitting property rights from one patrimony to another, involving removing all attributes of the property right. In the Court's view, an intromission in the protected right is considered to be dispossession „only when all the legitimate rights of the owner are discharged by law or through the exercise of the legal authority, with the same effect”. We appreciate that a distinction must be made between dispossession and control of the use of property. Dispossession involves a transfer of property, whereas in the case of control ownership is not transferred, but use is restricted by law. The legal regime of expropriations underwent substantive changes between 1948 and 1989, characterized mainly by the lack of general regulation in the matter, by a pronounced administrative character, since the expropriation was made by a decree of the State Council or by a presidential decree. Another feature of the expropriation institution in the aforementioned period was the payment of the compensation payable to the landlord in the case of the expropriation of its property, being defined by law as fair, but the law did not provide for such compensation to be prior, by assisting in practice to a nationalization and not to an expropriation. The European Court of Justice has stated that the existence of the legal act or fact means a deprivation of property, whatever it may be, and that deprivation will be considered the unjustified late payment of damages due to the operation of an expropriation because „one cannot ignore the elements liable to reduce their value can not be disregarded, such as the leakage of a period which can be qualified as reasonable”. It has decided in principle that a long delay in the payment of the expropriation allowance has the effect of worsening the financial loss for the expropriated person and putting it in a situation of uncertainty; account must also be taken of the monetary depreciation that occurs in some states. After 1990, we witnessed numerous ECHR decisions finding a violation of the provisions of Art. 1 of Protocol no. 1, the holders of the damages being injured in their rights by state delaying in paying for the damages. Moreover, the Court held that the non-execution by the executive authorities of the State of final judgments irrevocably imposing certain claims in favor of the applicant is a deprivation of property because it is the holder of exigible debts and the lack of financial resources invoked by the authorities was not such as to justify the failure to pay these claims. The measure of deprivation of property taken by national authorities is evaluated not only in relation to the domestic legal provisions in force but also in relation to the actual effect that measure produces on the right of ownership of the person concerned. It results from the various measures of the state authorities that result in the holder not being able to exercise the attributes of its right. In this regard, it is necessary to mention that providing the observance of the ownership right over an asset within the meaning of the Convention requires, first, a negative obligation on the part of the state authorities to refrain from adopting such measures, regardless of their nature. In its jurisprudence, the European Court has faced the question of knowing whether the provisions of Art. 1 of Protocol no. 1 impose also positive measures to the states, in order not to reach the point of deprivation of property. In this regard, the Court found that „the boundary between positive and negative obligations” corresponding to state authorities in order not to reach the point of deprivation of property regarding the holder of that right “is not always suitable for a precise definition” either a case is examined in relation to the existence of positive obligations of the state, or it concerns the denunciation of some interference by the public authorities, that is to say the failure to observe certain negative obligations which they disregard; it cannot be said that it is about applicable criteria, different in their substance; in both situations, the just balance that needs to be complied with between the competing interests of the individual and of the society as a whole, with the acknowledgement of a certain margin of appreciation in favor of the state authorities, will be put in the foreground. The deprivation of property may also arise in relation to the application of the provisions contained in the Treaties to which the Contracting States of the Convention are parties, but also in relation to the moment when the deprivation of right occurs, whether it is an instantaneous act or may take the form a continuous situation. The deprivation of property or other real rights is, basically, an instantaneous act and does not imply a situation of „absence of right”, in several decisions being revealed that, when the responsibility of a Contracting State is engaged from the outset due to an illegal expropriation, the absolute and continuous deprivation of access to expropriated assets without compensation constitutes a continuous violation of Art. 1 of the Additional Protocol. The European Court of Human Rights has stated that a deprivation of property must be provided by law, pursue a cause of public utility, comply with national rules and follow a proportionality ratio between the means used and the purpose aimed at. With regard to the indemnification of the owner of the right to property for deprivation of its right, the European Court of Human Rights has held that, in the absence of remedial compensation, art. 1 of Protocol no. 1 would only provide an illusory and ineffective protection of the right to property in total contradiction with the provisions of the Convention. With the deprivation of property, the State has the obligation to compensate the owner because, without payment of a reasonable amount, relative to the value of the property, the measure would constitute an excessive breach of the right to respect for its property. Constitutional Court of Romania in accordance with the jurisprudence of the European Court of Human Rights found, by Decision no. 72/2004 that the state is given a large margin of appreciation, depending on the real need of the community in adopting the measure of deprivation of property. The European Court has stated that there can be no violation of the provisions of the Convention if the deprivation of property was made in a particular political, economic or social context if it responds to a „public utility”, as stipulated by art. 1 of Protocol no. 1 to the Convention, belonging even to a more limited category of persons, so also in the situation where the collectivity as a whole does not itself use or take advantage of the property.

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