Protecția dreptului de proprietate: dezvoltări recente în jurisprudența Curții Europene a Drepturilor Omului
Protection of the ownership title: recent developments in the case law of the European Court of Human Rights

Summary/Abstract: It is beyond doubt that the property law has not occupied an important role in the initial text of the European Convention for the Protection of Human Rights, but it did so in its First Additional Protocol. Nonetheless, it may be certainly stated that currently, due to the constant evolution of the Strasbourg Court case law in the field, it holds an important place amongst human rights protected by the Convention. Starting from the quite imprecise wording of the 1st article of Protocol no. 1, according to which “Every natural or legal person is entitled to the peaceful enjoyment of his possessions”, the European jurisdiction has set that, by acknowledging such right to all persons, this text “substantially guarantees the property right, as the terms ‘possessions’, ‘property’ and ‘use of property’ clearly infer it, and the Convention preparatory works confirm it beyond doubt: the authors of the Convention have constantly mentioned the “property right” to designate the matter in the successive and laborious drafts leading to the current wording of the text that consecrates it. Or the right to enjoy one’s own possessions is a traditional and fundamental elements of the property right” (see ECHR decision of June 13, 1979, Marckx vs. Belgium, Series A, no. 31, § 63). In so far as the content of this text is concerned, the Strasbourg Court has constantly decided in its case law that article 1 of Protocol no. 1 contains three distinct norms: the first general one states the principle of the enjoyment of own possessions; the second one concerns the deprival of the property right subjected to certain conditions; the third one acknowledges the States’ authority to regulate, inter alia, the use of possessions by the holder according to the general interest, while allowing them to adopt the laws they regard as necessary to this end. Starting from these principles, the Court has finally developed an extensive case law concerning the notion of “possession” according to article 1 of Protocol no. 1, the obligations of the States to ensure “the enjoyment of his own possessions” to natural and legal persons and the terms of a possible “deprival of the property right”. In so far as the notion of “possession” is concerned, as used in this text, the Court has decided that it is an autonomous notion, including both real rights – the property right, the right of use, the fiduciary property, the State-granted concessions–, and the personal rights, such as receivables, company shares, etc. Under certain circumstances, defined in its case law, the Court has ruled that a “sufficiently important” substantial patrimonial economic interest, such as the right to compensation established by national jurisdictions or laws, represents a form of possession for the purposes of the Convention.

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