Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
A. Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Towards the fair balance approach: Sporrong
and Lönnroth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
The fair balance approach in action . . . . . . . . . . . . . . . . . . . . 206
B. Deprivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Towards the 1-1-2 approach: James v UK . . . . . . . . . . . . . . . 207
The 1-1-2 approach in action . . . . . . . . . . . . . . . . . . . . . . . . . . 208
C. Anomalous Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
D. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
E. Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
F. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
The so-called right to property, sometimes called the
right of property, is a curious right. It divides opinion,
central to some systems of belief, while utterly alien to
others. For Christians, private property could be a
“remedy for sin”;2Winston Churchill described it as “the
reward of human toil and thrift”.3For Marx, the idea of a
legal provision penalizing interference with an individual’s
private property would have been laughable; his
Communist Manifesto positively calls for such
interference.4And yet with Article 1 of Protocol No. 1 of
the European Convention on Human Rights (“P1-1”), it is
just such a provision with which we are faced.
So what is the right to property? Apparently it does not
mean that there is a positive obligation on the State to
provide persons who do not have it with property. This was
recently debated in a string of cases concerning Gypsies’
rights in the UK.5Although principally Article 8 cases,
the European Court of Human Rights in no case
found a violation of the right to respect for the home, and
“for the same reasons”,6no breach of P1-1. Since
safeguarding the right to respect for the home did not
entail actually giving the Applicant a home, it must be
assumed that the same applies, mutatis mutandis, to the
right to property.7
Despite coming into being in 1952, there are very
few monographs on the subject of P1-1.8The provision
Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and
subject to the conditions provided for by law and by the
general principles of international law.
The preceding provisions shall not, however, in any
way impair the right of a State to enforce such laws
as it deems necessary to control the use of property
in accordance with the general interest or to secure
the payment of taxes or other contributions or penalties.
It will be seen that the provision consists of three
sentences, two in the first paragraph (henceforth to be
referred to as “1-1-1” and “1-1-2”), and one in the second
(henceforth to be referred to as “1-2”).9However, the
complicated inter-relation of these three sentences is still
not resolved despite a half a century of case-law. The aim
of this brief note is to try and discern a pattern, if any, in
the Court’s thinking.
Towards the fair balance approach: Sporrong and
The starting point for this essay should be Sporrong and
Lönnroth v Sweden.10 As well as being a leading case,
containing two essential dicta, it also perfectly illustrates
the difficulty which the Court has, even amongst its own
members, in orienting itself within this Article.
Here, two old buildings were held in a kind of limbo
while Stockholm City Council contemplated a re-
development. The Court had no difficulty in holding that
[Vol. 29 No 6-9] – 30 November 2008 – 205
UNLOCKING THE FIRST PROTOCOL:
PROTECTION OF PROPERTY AND THE EUROPEAN COURT OF HUMAN RIGHTS
by Richard Lang, Bedford1
1Senior lecturer, School of Law, University of Bedfordshire. Of
Counsel, Kemmler Rapp Böhlke & Crosby, Brussels. The author
would like to express his sincere thanks to Ben Harrison for his
help in the creation of Annex I (see at p. 215). Any mistakes are
of course author’s own.
2Niebuhr, “Faith and History” in Abernethy, The Idea of
Equality: An Anthology (John Knox Press, Richmond, Virginia
1959) 316, 317.
3Churchill (ed), Winston Churchill’s Speeches (Pimlico,
London 2006) 81.
4Hence the stir that was caused in early 2007 when China
amended its laws on the subject. See “China proposes landmark
law stating private property is not theft”, The Independent, 9
March 2007, and “China passes new law on property”, BBC news,
16 March 2007. Despite these new laws, however, China allegedly
permitted forcible expropriations as part of its building spree in
the run-up to the 2008 Olympic Games: see “Games “catalyst for
China abuses” ”, BBC news, 29 April 2007.
5Chapman v UK, Reports and decisions 2001-I, Coster v UK,
Application 24876/94, not published, Lee v UK, Application
25289/94, not published, Jane Smith v UK, Application 25154/94,
6Chapman, Paragraph 120, Coster, Paragraph 133, Lee,
Paragraph 121, Jane Smith, Paragraph 125.
7And yet is the Court consistent here? Right to a fair trial
(Article 6), for example, was not limited to those with a court-
date already, but was also held to apply to those needing access to
a court to begin with: Golder, Series A, No. 18 (1975). State
liability was engaged not only where the Applicant had a trial, the
fairness of which needed safeguarding, but also where the
Applicant needed a trial in the first place. The provision of the
subject-matter of the right, as well as the enjoyment of it once
provided, were both covered by the provision.
8But special mention must be given to Coban, Protection of
property rights within the European Convention on Human Rights,
Ashgate, 2004 (henceforth “Coban”). Schutte, The European
Fundamental Right of Property: Article 1 of Protocol No. 1 to the
European Convention on Human Rights: its origins, its working
and its impact on national legal orders, Kluwer, 2004, is also very
good; he confirms that the literature is “scarce“ (p. 65). Sermet,
The European Convention on Human rights and property rights,
Council of Europe, 1990, and Van Den Broek, “The protection of
property rights under the European Convention on Human
Rights”, Legal issues of European integration 1986/01, pp. 52-90,
are good, if a little out-of-date.
9These abbreviations are inspired by those used in Harris,
O’Boyle and Warbrick, Law of the European Convention on
Human Rights (Butterworths, London 1995) 516, 521, et seq.
10 Series A, No. 52 (1982), 3 HRLJ 268 (1982).
this was an interference; the Applicants’ right of property
had become “precarious and defeasible”.11
It is at this point that the Court delivers a purple
passage, one which is often referred back to in subsequent
“Th[e] Article (P1-1) comprises three distinct rules. The
first rule, which is of a general nature, enounces the
principle of peaceful enjoyment of property; it is set out in
the first sentence of the first paragraph. The second rule
covers deprivation of possessions and subjects it to
certain conditions; it appears in the second sentence of the
same paragraph. The third rule recognises that the States
are entitled, amongst other things, to control the use of
property in accordance with the general interest, by
enforcing such laws as they deem necessary for the
purpose; it is contained in the second paragraph.
The Court must determine, before considering whether
the first rule was complied with, whether the last two are
Following its own advice, the Court now considers
whether 1-1-2 or 1-2 are applicable to the case in hand.
However, this was not a de jure or a de facto
expropriation, or deprivation – the right had lost its
substance, but it did not disappear. 1-1-2 was thus not
When it comes to 1-2, however, the Court is split eleven
members to eight. The majority dismisses the matter in
two short paragraphs. While the prohibitions on
construction were an instance of “control of use”, the
expropriation permits were more like a pre-nascent
deprivation – “[t]hey must be examined under the first
sentence of the first paragraph” (1-1-1).13 The Court now
delivers its second purple passage of the day:
“For the purposes of [the first sentence of the first
paragraph], the Court must determine whether a fair
balance was struck between the demands of the general
interest of the community and the requirements of the
protection of the individual’s fundamental rights... The
search for this balance is inherent in the whole of
the Convention and is also reflected in the structure of
In the event, the Court found the Swedish law to be
inflexible and held that Mrs Lönnroth and the estate of Mr
Sporrong were being asked to bear “an individual and
excessive burden”.15 In other words, the fair balance had
The minority disagrees that 1-2 is not the appropriate
limb under which to consider the case:
“Where the use of the properties is still possible although
restricted, [the second paragraph] remains applicable,
even if the intention behind the measures is the eventual
deprivation of ownership. This is confirmed in the
present case by the fact that deprivation in reality never
took place. The use of the property by the owner was
never terminated by State action. It was temporarily
restricted in view of possible expropriations in the future.
In our opinion, therefore, the second paragraph is
applicable in regard to the measures complained of in the
A thorough analysis of 1-2 follows, with great emphasis
on the phrase “general interest”. This is no surprise. Were
it not for the subordinate clause “in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties”, 1-2 would give States Parties
carte blanche to control property use as they saw fit. With
tax irrelevant to this case, a general interest assessment
becomes the last line of defence for the property owner.
The dissenters, then, use general interest as a yardstick by
which to measure the Swedish legislation:
“[T]he Court must satisfy itself not only as to the
lawfulness of the measures in question under Swedish law
but also that they were not inconsistent with the legitimate
aim of controlling the use of property in the general
In the event Sweden’s behaviour was lawful, according
to the minority, and was not contrary to the general
interest. What is interesting is the way this last part is
“Taking all these aspects together, we cannot conclude
that the measures adopted by the Swedish authorities,
particularly as regards their duration, went beyond the
legitimate aim permitted by the terms of the second
paragraph of Article 1 [P1-1}.”18
So the majority ignore 1-2 and concentrate on 1-1-1. The
minority ignore 1-1-1 and concentrate on 1-2. The majority
end by declaring the burden on the Applicants to be
“excessive”. The minority end by disagreeing that the
Swedish measures “went beyond” the aim in question.
How are we to react to this talk of “exceeding” and “going
beyond”? It is the language of proportion.
Although the term proportionality is not used anywhere
in this judgment, by majority or minority, it is clear that
this is a key concept in analysing Article 1 of Protocol 1 (as
it is throughout human rights law). We will see how it
develops in the following sections.
The fair balance approach in action
Sporrong, then, set a precedent by which Article 1,
Protocol 1 cases (or at least those concerning “control” of
property) were to be examined in two steps. First, the
Court would consider, albeit cursorily, the second
paragraph of the Article (1-2). Second, the Court would
return to the first sentence of the first paragraph of the
Article (1-1-1), and carry out a “fair balance” test.
This pattern was to be repeated often. In 1986, four
years after Sporrong, came Van Marle and others v the
Netherlands.19 Here, four Dutch accountants claimed that
their income and the value of the goodwill of their
accountancy practices had been diminished by the Dutch
accountancy Board of Appeal (commissie van beroep),
when it dismissed certain proceedings brought by them.
The Court gives very little reasoning in its judgment.
Mentioning only 1-2, it holds the Netherlands’ behaviour
to be within the “general interest”,20 and then, in a single
sentence, it declares that said behaviour passes the fair
balance test.21 It is worth noting, then, that the fair balance
test is not only for cases which cannot be dealt with under
1-2 (like Sporrong), but also those that can. The two steps
then are conjunctive, not disjunctive.
This last point is confirmed by the case of Tre Traktörer
v Sweden.22 Here, the Applicant, a Swedish limited
206 HUMAN RIGHTS LAW JOURNAL [Vol. 29, No. 6-9
11 Paragraph 60.
12 Paragraph 61, emphasis added.
13 One might ask, though, if they were a pre-nascent
deprivation, why not go back and consider them under 1-1-2?
14 Paragraph 69.
15 Paragraph 73.
16 Joint dissenting opinion of Judges Zekia, Cremona, Thór
Vilhjálmsson, Lagergren, Sir Vincent Evans, Macdonald,
Bernhardt and Gersing with regard to Article 1 of Protocol No. 1
(P1-1), paragraph 3.
18 Ibid., emphasis added.
19 Series A, No. 101 (1986).
20 Paragraph 43.
22 Series A, No. 159 (1989).
company, invoked P1-1 when its licence to serve beer,
wine and alcoholic beverages in a restaurant was revoked
by the County Administrative Board. After a short
discussion as to whether a licence can be a possession (it
can),23 the Court has to decide whether this is deprivation
or control. Resolving that certain “economic interests”
were “kept”,24 the Court opts for 1-2. Further, the
withdrawal of the licence was in the general interest, and
lawful.25 And yet the Court does not stop there, but goes
on, at Paragraph 59 et seq., to perform the fair balance
The Court considers one factor on Tre Traktörer’s side,
namely the fact that a sequence of positive decisions had
led them to believe that withdrawal would not take place
(foreseeability), before coming down on Sweden’s side.
The key facts which the Court takes into account are the
fact that the discrepancies in book-keeping were very
significant, and the fact that Swedish social policy
concerning the consumption of alcohol was a “legitimate
aim”.26 A fair balance had therefore been struck.
That the 1-2 enquiry and the fair balance test are
cumulative is further confirmed by the case of Gasus
Dosier- und Fördertechnik GmbH v the Netherlands.27
Here, a cement mixer owned by Gasus was seized by the
Dutch tax authorities from a client, who had not yet paid,
after they went bankrupt. The Applicants argued for 1-1-2
(deprivation), but were overruled by the Court which
opted for 1-2: the Dutch act was for “secur[ing] the
payment of taxes”.28 Furthermore, the Dutch law was
“clearly in the general interest”.29 And yet again the Court
does not stop there, but goes on, at Paragraph 62 et seq.,
to “construe” the second paragraph “in the light of the
principle laid down in the Article’s... first sentence”. In
other words, it performs the fair balance test. The
Applicants put forward a number of arguments, including
two very important ones, namely, they were not
responsible for causing the tax debt, and they could not
have known about it. However, the Court rejects these,
preferring to reason that they knew the risk, and should
therefore have taken steps to limit it. The fair balance was
An interesting case, though, is Matos e Silva Lda. v
Portugal.31 Here, a piece of land in Portugal was made
subject to a building ban and other restrictions as a result
of the creation of nature reserve; Matos e Silva owned part
of the land in question.
After some discussion as to whether there was a
“possession” at all, the Court decides against the 1-1-2
approach (as it did in Sporrong), which the Applicants had
wanted. This was not a deprivation because it was not
irreversible. There was a “reduced ability to dispose of the
property”:32 “Although the right in question had lost some
of its substance, it had not disappeared.”33 However,
instead of going through 1-2 as one would expect, the
Court misses out this stage altogether, and goes straight to
1-1-1 and the fair balance test.34, 35
Towards the 1-1-2 approach: James v UK
In January 1986, the Court delivered its judgment in
James and others v UK.36 The case concerned ten
properties in Belgravia, which were compulsorily
transferred to the occupants pursuant to the Leasehold
Reform Act 1967, as amended (James and others being
The Court began by re-iterating what was said in
Sporrong (see above), that an assessment of 1-1-1 must be
postponed until after an assessment of 1-1-2 and 1-2. In
other words, the “general” rule is only considered after the
two specific rules, one concerning deprivation of property
(1-1-2) and the other concerning the control of its use
(1-2). An a priori quantitative enquiry must therefore be
made as to the extent of the interference. Is it partial (in
which case 1-2 is the rule to employ), or is it total (in which
case 1-1-2 is the rule to employ)? The Court then delivers
another purple passage:
“The three rules are not, however, “distinct” in the sense
of being unconnected. The second and third rules are
concerned with particular instances of interference with
the right to peaceful enjoyment of property and should
therefore be construed in the light of the general principle
enunciated in the first rule.”37
In James, the Court has no doubt that it is facing a
deprivation of property; it therefore takes what we might
call the 1-1-2 approach. Appearing to take each limb of
the sentence in order, it first asks whether this deprivation
was in the public interest. The Applicants contend that the
transfer of property from one person to another for “the
latter’s private benefit” cannot be “in the public interest”.
2008] UNLOCKING PROTOCOL NO. 1: PROTECTION OF PROPERTY AND THE EurCourtHR 207
23 It is not the intention of this article to consider at any great
length the scope ratione materiae of P1-1. Accounts of what types
of thing have or have not been considered to be “property” by the
Court may be found elsewhere; the issue is only mentioned
hereafter where it is thought to be of particular interest. However,
two recent cases worth looking at are Kopeckýv. Slovakia (Grand
Chamber), no. 44912/98, ECHR 2004-IX, and Anheuser-Busch
Inc. v. Portugal (Grand Chamber), no. 73049/01, 11 January 2007.
In Kopecký, the Court held that, in the case where the applicant
was dispossessed of his or her good before the State ratified P1-1
(for example, as in Kopeckýitself, during an earlier period of
communist rule), he or she may still have a claim as long as a
restitution law was adopted subsequent to the ratification of the
Protocol; this law effectively created a new right. It further held
that, although P1-1 does not grant a right to acquire property,
“possessions” can include claims, in respect of which the applicant
can argue that he or she has at least a “legitimate expectation” of
obtaining effective enjoyment of a property right. However, the
mere existence of a “genuine dispute”, or an “arguable” claim,
was insufficient; any claim had to have a sound legal basis. In
Anheuser-Busch, the Court expanded this reasoning to include an
application for registration of a trademark.
24 Paragraph 55.
25 Paragraphs 57 and 58.
26 Paragraph 62.
27 Series A, No. 306-B (1995).
28 Paragraph 59.
29 Paragraph 61.
30 One might observe, in passing, the reference to the word
“proportionality” in both Paragraph 59 of Tre Traktörer and
Paragraph 62 of Gasus, as well as, in Tre Traktörer, reference to a
case called James. Please now see section B below for an
examination of the latter case, and more on the relationship
between “proportionality” and “fair balance”.
31 Reports 1996-IV.
32 Paragraph 85.
34 Although environmental concerns were in the general
interest, this was outweighed by the long period of uncertainty to
which Matos e Silva were subjected.
35 Space forbids a description of every case in this category,
but other cases definitely worth considering are Fredin v Sweden,
Series A, No. 192 (1991), and Pine Valley Developments Ltd. and
Others v. Ireland, Series A, No. 222 (1991), 13 HRLJ 36 (1992).
36 Series A, No. 98 (1986).
37 Paragraph 37.
The Government disagrees. The taking is effected in
pursuance of legitimate social policies. The Court holds
that “public interest” does not mean that the property has
to be “put into use for the general public”; the object and
purpose of Article 1 is “primarily to guard against the
arbitrary confiscation of property”.
After a short homily on the margin of appreciation, the
Court next considers whether the aim of the contested
legislation is a legitimate one, in principle and on the facts.
It answers this in the affirmative.
The Court now turns from the “why” to the “how”, with
a section entitled, “Means chosen to achieve the aim”.
This is divided into five subsections, each tackling a
different one of the Applicants’ arguments. As part of its
examination of one, but one only, of the arguments the
Court returns to the wording of 1-1-2, considering whether
the deprivation was “subject to the conditions provided for
by law” and “the general principles of international law”
(albeit taking the second aspect first). In all cases, the
Court finds that the State acted within its margin of
Finally, the Court keeps its promise to look at 1-1-1 last
of all, announcing that it is “inconceivable that application
of [the] general principle to the present case should lead to
any conclusion different from that already arrived at by
the Court in application of the second sentence”.38 So, if
there is no violation of 1-1-2, it seems there can be no
violation of 1-1-1.
What are we to make of the Court’s approach in James?
It is somewhat meandering and not a little confused. It
jumps strangely around the wording of 1-1-2. It starts with
“[n]o one shall be deprived of his possessions except in the
public interest”, but it is not clear where the public interest
enquiry finishes. Paragraph 45 ends with the remark:
“Accordingly, it is necessary to inquire whether in other
respects the legislation satisfied the “public interest” test
and the remaining requirements laid down in the second
sentence of Article 1.”
The reader is left wondering, however, how much of
what follows is to be considered “other respects” of public
interest, and how much is “the remaining requirements”.
When the Court considers the aim of the legislation, for
example, is this still public interest? Paragraph 48 and the
beginning of Paragraph 50 would so imply. But what about
the proportionality test which follows? This is imported,
“mutatis mutandis”, from Ashingdane v UK,39 not even a
property case. That case concerned alleged breaches of
Articles 5 and 6, after a delay in transferring Mr
Ashingdane from Broadmoor high-security psychiatric
hospital to a hospital with a less strict regime. It was in
relation to Article 6(1) that the Court declared, at
“[Having access to the High Court and the Court of
Appeal] of itself does not necessarily exhaust the
requirements of Article 6 para. 1. It must still be
established that the degree of access afforded under the
national legislation was sufficient to secure the
individual’s “right to a court”, having regard to the rule
of law in a democratic society... Certainly, the right of
access to the courts is not absolute but may be subject to
limitations... Nonetheless, the limitations applied must not
restrict or reduce the access left to the individual in such a
way or to such an extent that the very essence of the right
is impaired... Furthermore, a limitation will not be
compatible with Article 6 para. 1 if it does not
pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means
employed and the aim sought to be achieved.” (emphasis
In James, then, the Court is drawing an analogy between
access to a court and access to one’s property. Both may
be subject to limitations. But the reasons for, and extent
of, these limitations must be scrutinized.40
However, Ashingdane is not the only precedent which
the Court invokes to found a proportionality analysis at
this point in the proceedings. It also invokes Sporrong and
“This... requirement was expressed in other terms in the
Sporrong and Lönnroth judgment by the notion of the
“fair balance” that must be struck between the demands
of the general interest of the community and the
requirements of the protection of the individual’s
Proportionality and the fair balance test are thus one
and the same thing.
The 1-1-2 approach in action
Five months after James, in Lithgow,42 four British
citizens, a French citizen and various UK companies, all
with “interests” in the UK aircraft and shipbuilding
industries, complained that the nationalisation of these
industries in 1977 had infringed their right to property;
what compensation they had received they felt was grossly
inadequate and discriminatory.
The Court starts by taking the 1-1-2 approach – this was,
according to it, “clearly” a deprivation.43 The various
phrases which make up the second sentence of para-
graph 1 are then considered in turn: “in the public
interest”, “subject to the conditions provided for by law”
and even (unusually) “general principles of international
law”. This analysis completed (the UK’s behaviour did not
fall foul of any of the requirements of the sentence), the
Court momentarily seems to hesitate as to where to go
next. The article is, after all, “silent” on the issue of
compensation, which is the main focus of the case.44 It
therefore falls back on its old stand-by, proportionality,
but in doing so it again admits that this is just the fair
balance test by a different name: when nationalising, did
the UK strike the correct balance between the public
interest and the private interests concerned? Was it fair as
regards the quantum of compensation? (The Court
answers these questions in the affirmative.)
Another example of the 1-1-2 approach is Pressos
Compania Naviera and others v Belgium.45 Here, the
twenty six Applicants’ claims for compensation in relation
to maritime accidents had been frustrated by the passing,
by Belgium, of an exemption law with retroactive effect.
Having decided that the claims constituted “possessions”,
the Court opts for the 1-1-2 approach. Since the new law
completely exempted the alleged tortfeasors, the claims
were entirely wiped out. This was therefore a case of
deprivation, not control. What is interesting about the
208 HUMAN RIGHTS LAW JOURNAL [Vol. 29, No. 6-9
38 Paragraph 71.
39 Series A, No. 93 (1985).
40 While the concept of proportionality is not in the wording of
P1-1 itself, it is to be found (arguably) in the Convention: see
Article 17. Compare EU law, where hindrances to free movement
(for example) must also be subjected to a proportionality test.
The concept of proportionality in EU law, however, was not
expressed in writing until the Treaty of Maastricht. It is, rather,
regarded as an unwritten “general principle”.
41 Paragraph 50.
42 Series A, No. 102 (1986).
43 Paragraph 107.
44 Paragraph 120. See section D, below.
45 Series A, No. 332 (1995).
Court’s 1-1-2 enquiry in this case is that it considers only
two elements. Firstly, was the law “in the public interest”?
This the Court answers in the affirmative. Second, was the
interference proportional?46 The Court holds that lack of
compensation is a strong indicator of disproportionality.47
Further, while the State may have had certain
justifications in legislating as it did, there was no
justification for the retroactivity of the legislation:48
“Such a fundamental interference with the applicants’
rights is inconsistent with preserving a fair balance
between the interests at stake.”49
The balance test failed, the Court held Belgium in
breach of P1-1. And yet the reader is left wondering why
the phrases “subject to the conditions provided for by law”
and “the general principles of international law” were not
considered this time. Does the Court pick and choose
which parts of the Article it wants to scrutinize?
A further example of the 1-1-2 approach is Hentrich.50
This case concerned a French law whereby the authorities
could, if they suspected tax evasion, step into a land
purchase and “pre-empt” it. One of the grounds for
suspicion was a low purchase price. This happened to Mrs
Hentrich, with the result that she could do nothing with
her land for eight years.
After having dismissed a preliminary objection based on
the non-exhaustion of domestic remedies, the Court goes
on to consider the alleged violation of Article 1 of
Protocol 1. It has no difficulty in declaring this to be a
deprivation: indeed this was not contested. Was it in the
public interest? This it answers in the affirmative:
“The Court... recognises that the prevention of tax
evasion is a legitimate objective which is in the public
But was it “subject to the conditions provided for by
law”? The Court here is quite scathing:
“In the instant case the pre-emption operated arbitrarily
and selectively and was scarcely foreseeable, and it was
not attended by the basic procedural safeguards. In
particular, Article 668 of the General Tax Code, as
interpreted up to that time by the Court of Cassation and
as applied to the applicant, did not sufficiently satisfy the
requirements of precision and foreseeability implied by
the concept of law within the meaning of the
Next the Court considers proportionality. The main
factor it takes into account here is “the degree of
protection from arbitrariness that is afforded by the
proceedings”, although it also considers “the risk run by
any purchaser that he will be subject to pre-emption and
therefore penalised by the loss of his property solely in the
interests of deterring possible underestimations of price”.
The Court ends its analysis by declaring that the “fair
balance” has been upset.
So despite diligently following the steps of 1-1-2, it
appears that a proportionality assessment is the last call
for all potential violations of Article 1, Protocol 1: all
roads lead to fair balance.53
C. Anomalous Cases
Of course, one cannot be formalistic; not all cases fit a
pre-set blueprint or model.
In AGOSI v United Kingdom,54 Allgemeine Gold- und
Silberscheideanstalt AG (“AGOSI”), a German company
dealing in gold and silver coins, sold some Kruegerrands to
two British men, X and Y, in return for an unguaranteed
cheque. The cheque was dishonoured, and, according to
the contract, ownership remained with AGOSI until full
payment. Meanwhile, X and Y were caught at Dover with
the Kruegerrands hidden in a spare tyre, and criminal
proceedings were instigated against the two men for
evasion of the prohibition on the importation of gold
coins. AGOSI asked for the coins back, saying that they
had been the innocent victims of fraud. However, the
coins were not restored. X and Y were convicted and
fined. At the end of the case, the coins were still not
returned, so AGOSI issued a writ. Eventually the case
went to the Court of Appeal, where Lord Denning stated
that the forfeiture was “within the discretion of the
Customs and Excise”; leave to appeal to the House of
Lords was refused.
The Court of Human Rights found that there was an
interference,55 and that it was “clearly” an instance of
control, falling under 1-2.56 At this point, however, the
Court, instead of taking them in sequence, begins a
strange dance between 1-2 and 1-1-1, interlacing the two
provisions in a most intriguing way. At one point it even
“For forfeiture to be justified under the terms of the
second paragraph of Article 1 [P1-1], it is enough that the
explicit requirements of this paragraph are met and that
the State has struck a fair balance between the interests of
the State and those of the individual.”57
1-2 and 1-1-1 are thus melded into a single sentence,
and, it would seem, for one case only,58 a single test.59
In Erkner and Hofauer v Austria,60 19.5 hectares of
farm-land belonging to the Applicants were redistributed
by Austria as part of “consolidation proceedings”. After
determining that there has been an interference,61 the
Court holds that there has been neither a formal nor a de
facto expropriation of the land (there remains a possibility
of the Applicants’ recovering the land later); 1-1-2 is
therefore inappropriate. However, the Court goes on:
“Nor was the provisional transfer essentially designed to
restrict or control the “use” of the land..., but to achieve
an early restructuring of the consolidation area with a
view to improved, rational farming”62
The Court therefore determines to consider the case
solely under the first sentence of the first paragraph
(1-1-1). The facts which sway the Court are, inter alia, the
fact that there has been no compensation after sixteen
years,63 the fact that the system is inflexible,64 and the fact
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46 Note again how the term “proportionality” and the phrase
“fair balance” are freely interchanged here – see, for example,
Paragraph 38. For more on this see section F.
48 Paragraph 43.
50 Series A, No. 296-A (1994), 15 HRLJ 317 (1994).
51 Paragraph 39.
52 Paragraph 42.
Again space forbids an analysis of every case in this category,
but for another good 1-1-2 case, see The Holy Monasteries v
Greece, Series A, No. 301-A (1994), 16 HRLJ 30 (1995).
54 Series A, No. 108 (1986).
55 Paragraph 48.
56 Paragraph 51.
57 Paragraph 54.
58 Although see now section E.
59 In the result, no breach of P1-1 was found. One is tempted to
conclude that the (innocent) tradesmen came out of the deal
worse off than those who committed the fraud.
60 Series A, No. 117 (1987).
61 Paragraph 72.
62 Paragraph 74, emphasis added.
63 Paragraph 76.
64 Paragraph 78.
that the Applicants are uncertain as to the final fate of
their property.65 With a “disproportionate burden” on the
Applicants,66 Austria fails the fair balance test and the
Court finds her in breach of P1-1.
Another case where the Court seems interested in
neither 1-1-2 nor 1-2 is Stran Greek Refineries and Statis
Andreadis v Greece.67 Here, Mr Andreadis entered into a
contract in 1972 with the Greek State (at that time
governed by a military junta) to build a crude oil refinery.
He then transferred all his rights and obligations to the
company (Stran Greek Refineries). In 1977, democracy
has returned and the contract is terminated. In 1984, the
Greek Arbitration Court makes an award in favour of the
company. However, in 1987, the Greek Parliament
enacted a law declaring the award invalid. The Applicants
claimed that this law deprived them of their property,
namely the arbitration award. The Court, having decided
that the award was a possession, then had to decide if
there was an interference. It answered this question in the
affirmative: the arbitration award was declared void, and
unenforceable.68 However, it went on:
“The interference in question was neither an
expropriation nor a measure to control the use of
property; it falls to be dealt with under the first sentence
of the first paragraph of Article 1 [P1-1].”69
The Court then performed the fair balance test. The
Applicants admitted “that the brutal practices of the
military regime weighed more heavily on the scales of
public interest than claims based on transactions
concluded with that regime”.70 However, penalizing them
for entering into a legal relationship with a dictatorial
regime would be “unjust”.71 The Court agreed; by not
providing compensation, the State had upset the fair
balance.72 This case is all the more unusual in that “public
interest” seems to have been the only factor considered
under the fair balance test.
Finally, in 1999, comes a case wherein the Court not
only abandons deprivation and control, but even fair
balance: Iatridis v Greece.73 Here, a man called “K. N.”
inherited three quarters of the “Karras Estate” in 1929,
and the remaining quarter in 1938. In 1950, having
obtained the appropriate permit, K.N. built an open-air
cinema (the “Ilioupolis” cinema) on part of the land.
However, in 1953, the Ministry of Agriculture disputed
K.N.’s ownership of the land, saying that it was public
forest. K.N. applied to the Supreme Administrative Court
to have this declaration set aside, but his application was
dismissed. In 1955, a Royal Decree designated the area as
land to be reafforestated. In 1965 and 1966, the State
transferred some 200,000 sq. m of the Karras Estate to the
Police Officers’ Housing Cooperative (although not the
part with the cinema on it). K.N., and, after his death in
1976, his heirs, pursued several legal proceedings without
success. In 1978, K.N.’s heirs leased the “Ilioupolis”
open-air cinema to the Applicant, who completely
restored it. But, in 1985, the Attica prefecture informed
the Applicant that the land on which the cinema
had been built was considered to be State property. The
State then assigned the cinema to the Town Council,
and evicted the Applicant. Although this eviction was
quashed, the State would not reinstate the Applicant as
The Court of Human Rights found this to be neither an
expropriation nor an act of controlling, but rather a matter
to be dealt with under the first sentence of the first
paragraph.74 Up until now, this had been synonymous with
the fair balance test, but here the Court takes a different
“The Court reiterates that the first and most important
requirement of Article 1 of Protocol No. 1 is that any
interference by a public authority with the peaceful
enjoyment of possessions should be lawful.”75
To back up this “lawfulness” theory, the Court then
quotes from the relevant sections of 1-1-2 and 1-2, and
even invokes the “rule of law” itself. It then examines the
complicated legal history of the cinema, before concluding
that the Applicant’s eviction had “ceased to have any legal
“The Court considers [...] that the interference in question
is manifestly in breach of Greek law and accordingly
incompatible with the applicant’s right to the peaceful
enjoyment of his possessions.”77
This extraordinary case ends with the Court’s declaring
that it was thus “unnecessary” to conduct the fair balance
Lest any confusion should arise, and especially as this
article is intended for those new to P1-1, it is proposed to
pause now for a short section on compensation. The topic
has already cropped up, for example, when we considered
Lithgow and Pressos Compania Naviera in section B, and
Erkner and Hofauer and Stran Greek Refineries in section C.
The story of Article 1, Protocol 1 and the issue of
compensation is a simple one. “Compensation”
encompasses the idea that, having deprived an individual of
his, her or its property, the State should pay an amount of
money to said individual to make good their loss.
already noted in section B, this idea appears nowhere in the
text of P1-1. This was because, at the time of the drafting of
the Protocol, several countries raised objections to the
inclusion of a “compensation” clause. These included the
United Kingdom, which was concerned that such a clause
might interfere with nationalization schemes. The final text,
then, made no mention of compensation.
210 HUMAN RIGHTS LAW JOURNAL [Vol. 29, No. 6-9
65 Paragraph 79.
67 Series A, No. 301-B (1994), 15 HRLJ 432 (1994).
68 Paragraph 66.
69 Paragraph 68.
70 Paragraph 71.
72 Paragraph 74.
73 Reports of Judgments and Decisions 1999-II.
74 Paragraph 55.
75 Paragraph 58.
76 Paragraph 61.
77 Paragraph 62.
79 Once again space forbidsa dissection of every case in this
category, but for another where both deprivation and control are
rejected, see Phocas v France, Reports 1996-II.
80 Of course this “idea” is not just confined to the law of the
right to property. It is found in most areas of law, and dates back
to Roman law (the lex talionis) and before that even to Biblical
times: “breach for breach, eye for eye, tooth for tooth”, Leviticus
XXIV, 20. “[These phrases] are merely technical phrases for the
demand that adequate and equitable compensation, after due and
judicial appraisement of the injury inflicted, is to be paid for the
injury... To the Talmudists the Biblical words eye for eye had
become a mere expression of the law of equality.”: The
Pentateuch and Haftorahs, Hebrew Text, English Translation and
Commentary, edited by the Chief Rabbi (Dr J.H.Hertz), London,
The Soncino Press, 5707– 1947.
81 See, for a good description of this episode, Coban (n. 8), at
pp. 127 et seq.
The judges took a different view, however. In James
(discussed at section B, above), the case of the Belgravia
properties taken out of the hands of the landlords and
placed into the hands of the tenants, the Court held as
“Like the Commission, the Court observes that under the
legal systems of the Contracting States, the taking of
property in the public interest without payment of
compensation is treated as justifiable only in exceptional
circumstances not relevant for present purposes. As far as
Article 1 [P1-1] is concerned, the protection of the right
of property it affords would be largely illusory and
ineffective in the absence of any equivalent principle.
Clearly, compensation terms are material to the
It went on:
“The Court further accepts the Commission’s conclusion
as to the standard of compensation: the taking of property
without payment of an amount reasonably related to its
value would normally constitute a disproportionate
interference which could not be considered justifiable
under Article 1 [P1-1]. Article 1 [P1-1] does not,
however, guarantee a right to full compensation in all
circumstances. Legitimate objectives of “public interest”,
such as pursued in measures of economic reform or
measures designed to achieve greater social justice, may
call for less than reimbursement of the full market value.
Furthermore, the Court’s power of review is limited to
ascertaining whether the choice of compensation terms
falls outside the State’s wide margin of appreciation in
Quantum of compensation, and whether it should
always be the “full market value” of the lost item(s), is a
subject unto itself, about which many books have been
written. It will not be dealt with here. But in the context of
the right to property it can raise some interesting
questions. Recently the son of a German Jew, whose
extensive collection of first-run posters had been
confiscated by Goebbels, returned to Germany from the
US, where the family had fled, to negotiate the fate of the
posters.84 Interviewed on the BBC, he said that he just
wanted to continue his father’s passion for posters. What
price passion? The European Court’s own approach to
quantum has been described as “somewhat
contradictory”.85 As Coban puts it, “its practice regarding
valuation is inconsistent”.86
Thus, from James, we can see that a compensation
requirement was “written into” Article 1.87 But
whereabouts in Article 1? Taking without compensation,
we are told in the last quotation, would be
“disproportionate”. Thus, it would appear that the
presence or absence of compensation forms part of the
This was confirmed in Lithgow (also discussed at section
B, above), where the Applicants complained that the UK’s
Aircraft and Shipbuilding Act 1977 had robbed them of
their “interests” in these sectors. The Court, at paragraph
120, repeated word for word the first quotation above. It
then went on to equate the “proportionality” enquiry with
the “fair balance” test, concluding:
“Clearly, compensation terms are material to the
assessment whether a fair balance has been struck
between the various interests at stake and, notably,
whether or not a disproportionate burden has been
imposed on the person who has been deprived of his
Compensation, then, is part of the proportionality/ fair
balance review. In Coban’s words, “The compensation
issue is considered as an element of a balancing test.”90
It is interesting to note that, in the EU’s Charter of
Fundamental Rights, the right to compensation in the
event of expropriation is explicit, not implicit. Article
Everyone has the right to own, use, dispose of and
bequeath his or her lawfully acquired possessions. No
one may be deprived of his or her possessions, except in
the public interest and in the cases and under the
conditions provided for by law, subject to fair
compensation being paid in good time for their loss. The
use of property may be regulated by law insofar as is
necessary for the general interest.
The Lisbon (or “Reform”) Treaty, formally signed and
adopted on 13 December 2007, incorporated the Charter
and rendered it fully legally binding.91 After a shaky
ratification process, involving two referenda in Ireland, the
Treaty entered into force on 1 December 2009. It should
be noted, however, that the Charter’s scope is limited with
regard to the Member States, and that it binds them “only
when they are implementing Union law”.92 There are also
opt-outs for Poland and the UK, ensuring that no court –
neither the national court nor the European Court of
Justice (“ECJ”) – will be able to annul any provision of
UK or Polish law on the grounds that it is in breach of any
of the Charter rights. Even so, the Charter retains
considerable legal value, and a new line of property case
law based on it may be expected to quickly evolve at the
ECJ. It remains to be seen of course whether Article 17(1)
will fare better than P1-1.
E. Recent Developments
So far this essay has concentrated on the “classic” cases,
the most recent being Iatridis in 1999. Have there been
any more recent cases which have bucked the trends we
have seen so far, in sections A, B and C?
An examination of the more recent cases reveals that
some of what we took to be anomalies in section C were in
fact experiments in new approaches.
Three of these approaches in particular seem to have
The first is the AGOSI approach, wherein 1-2 (control)
and 1-1-1 (fair balance) are “melded“ (see section C). Also
to be included in this category are those cases where the
2008] UNLOCKING PROTOCOL NO. 1: PROTECTION OF PROPERTY AND THE EurCourtHR 211
82 Paragraph 54.
84 See “German Jew tries to get art Nazis took”, Minneapolis
Star Tribune, 25 January 2007.
85 See Frigo, “Peaceful enjoyment of possessions, expropriation
and control of the use of property in the system of the European
Convention on Human Rights”, Italian Yearbook of International
Law 2000, v. x, p. 45-69, at p. 66.
86 Coban (n. 8), p. 229.
87 Although Judge Thór Vilhjálmsson vehemently dissented on
88 Attempts were made by the Applicants to argue that the
compensation requirement should be read into other clauses of
the Article, for example, “subject to the conditions provided for
by law” or “the general principles of international law”. The
former was rejected out of hand. The latter was entertained, but it
was decided that “the general principles of international law”
entailed “the obligation to pay compensation to non-nationals in
cases of expropriation” (paragraph 64, emphasis added) and that
“the reference to the general principles of international law was
not intended to extend to nationals” (ibid.).
89 Paragraph 120.
90 Coban (n. 8), p. 257.
91 With opt-outs for the UK and Poland.
92 Charter, Art. 51(1).
interference is separately declared to be a controlling, but
where the Court moves so quickly to fair balance (usually
within one sentence) that the effect is the same as the
“pure” AGOSI cases.93
In Chassagnou and others v France,94 Mrs Chassagnou
and her co-Applicants complained that they had been
obliged, by law, to transfer hunting rights over their land
to the Associations communales de chasse agréées
(ACCA’s), and that this infringed P1-1. The Court held:
“This restriction on the free exercise of the right of use
undoubtedly constitutes an interference with the
applicants’ enjoyment of their rights as the owners of
property. Accordingly, the second paragraph of Article 1
is applicable in the case.“95
And then, in the very next sentence, it continued:
„It is well-established case-law that the second paragraph
of Article 1 of Protocol No. 1 must be construed in the
light of the principle laid down in the first sentence of the
Article. Consequently, an interference must achieve a
In Immobiliare Saffi v Italy,97 the Applicant company,
which was the owner of an apartment in Livorno,
complained about its inability to repossess the flat from
the tenant, which it blamed on the State’s refusal to
provide “police assistance”. The Strasbourg judges stated:
“The Court reiterates that an interference, particularly
one falling to be considered under the second paragraph
of Article 1 of Protocol No. 1, must strike a “fair
balance” between the demands of the general interest and
the requirements of the protection of the individual’s
In the almost identical case of A.O. v Italy,99 A.O., the
landlord of a flat in Rome, complained that lack of police
assistance had made it impossible for him to recover
possession of his apartment. The judges repeated their
earlier dictum almost word for word:
“The Court reiterates that an interference under the
second paragraph of Article 1 of Protocol No. 1, must
strike a “fair balance” between the demands of the
general interest and the requirements of the protection of
the individual’s fundamental rights.”100, 101
The second approach which seems to have “caught on”
is the Erkner / Stran approach. Here, as will be
remembered, the Court abandons both 1-1-2 (deprivation)
and 1-2 (control), allowing it to move straight to 1-1-1.102
In Almeida Garrett, Mascarenhas Falcão and others v
Portugal,103 all the Applicants owned land that had been
expropriated and nationalised as part of the “Agrarian
Reform Policy” in Portugal; they complained that they
were never given their “final compensation”. The Court
“As regards which part of that provision is applicable in
the instant case, the Court observes that the interference
with the applicants’ right to enjoyment of their
possessions is constituted by the continuing failure to pay
the final compensation. The Court has no power to
examine, among other matters, the issues linked to the
deprivation of possessions or, a fortiori, to the amount of
the compensation [...]. The interference cannot, therefore,
be equated to a deprivation of possessions within the
meaning of the second sentence of the first paragraph of
Article 1 of Protocol No. 1. The situation therefore comes
within the first sentence of that paragraph, which lays
down the principle of peaceful enjoyment of property in
In its assessment of 1-1-1, the Court held that the
continuing uncertainty, without remedy, put an excessive
burden on the Applicants; a breach of P1-1 was thus
found. It is quite amazing that the unpaid debts in this case
were not found to be deprivations, while the ones in
Pressos were (see section B).
In Ambruosi v Italy,105 Ms Ambruosi (a lawyer) acted
for a number of pensioners who were trying to recover
their pensions. In some cases, she requested a “direct
discharge” of her fees, costs and expenses, that is, she
would get paid only when the pension itself was granted.
However, a Law Decree passed in 1996 extinguished all
pending proceedings; judgments which had not yet
become final (including some nine which Ms Ambruosi
had worked on) would produce no legal effects. She
complained that the termination, via the Law Decree, of
the civil actions violated her right to the peaceful
enjoyment of her possessions.
The Court held:
“In the light of the foregoing, the Court takes the view
that the deprivation of legal effects and the offsetting in
question did not amount to a deprivation of property
within the meaning of the second sentence of the first
paragraph, but rather to an interference with the
applicant’s right to the peaceful enjoyment of her
possessions within the meaning of the first sentence of the
first paragraph of Article 1.”106
Having performed the “fair balance” test, the Court
concluded that P1-1 had not been violated.
In Bilgin v Turkey,107 the Applicant’s house was burnt
down in the course of State action directed against the
PKK. In an astonishing judgment, which seems to forego
reasoning altogether, the Court declared:
“The Court has found it established that the applicant’s
home and possessions were destroyed by the security
forces, thus depriving the applicant of his livelihood and
forcing him and his family to leave Yukarıgören [...].
There can be no doubt that these acts constituted grave
and unjustified interferences with the applicant’s rights to
212 HUMAN RIGHTS LAW JOURNAL [Vol. 29, No. 6-9
93 Note here the closeness to Matos e Silva, which was the last
case to be dealt with in section A. Once again we see how difficult
it is to draw “red lines” between categories.
94 Reports of Judgments and Decisions 1999-III.
95 Paragraph 74.
96 Paragraph 75. In the end the Court held that the fair balance
was upset, and P1-1 was violated.
97 Reports of Judgments and Decisions 1999-V.
98 Paragraph 49. Again, the balance was held to be upset, and a
violation of P1-1 was found.
99 Application 22534/93, not published.
100 Paragraph 22. In the result, uncertainty and lack of
compensation led to the balance’s being upset and a violation of
P1-1 being found. It is interesting to note that in the earlier
“police assistance” case of Spadea and Scalabrino v Italy, Series
A, No. 315-B (1995), a much more thorough examination was
made of 1-2, before moving on to 1-1-1. This lends credence to the
theory that the Court is gradually trying to “speed things up” by
reducing the number of hoops it has to jump through. For more
on the interesting topic of landlords’ rights, see Heppinstall, “To
suspend or not to suspend... that is the question...”, The
Conveyancer and Property Lawyer, 2001 65 Conv 307-312 .
101 Six months later, 1-2 and 1-1-1 were again melded for the
purposes of an Italian “police assistance” case: Edoardo Palumbo
v Italy, Application 15919/89, not published.
102 One should at this point note Coban’s warning that “the
application of a balancing test without any other criteria” will
create “tremendous uncertainty”: Coban (n. 8), p. 191.
103 Reports of Judgments and Decisions 2000-I.
104 Paragraph 48.
105 Application 31227/96, not published.
106 Paragraph 27.
107 Application 23819/94, not published.
respect for his private and family life and home, and to
the peaceful enjoyment of his possessions... Accordingly,
there have been violations of Article 8 of the Convention
and Article 1 of Protocol No. 1.”108, 109
The third and final approach which seems to have
“caught on” is the Iatridis approach. Following on from
the Erkner / Stran approach, here the Court not only does
away (arguably) with deprivation and control, but
(potentially) with fair balance as well, by making the
fulfilment of the “lawfulness” criterion a condition
precedent (see the description of the Iatridis case at
section C above).
In Beyeler v Italy,110 Mr Beyeler, a Swiss national,
bought a Van Gogh portrait from an Italian art collector
(Mr Verusio), via an intermediary, a Rome antiques dealer
named Mr Pierangeli. Italy would not grant a licence for
the painting to leave the country, and furthermore was not
convinced that Mr Pierangeli had bought it on behalf of
Mr Beyeler. In the end, the Ministry of National
Education exercised its “right of pre-emption” over the
painting. Mr Beyeler complained of a violation of P1-1.
The Court first made this interesting remark:
“Having regard to the foregoing, the Court does not
consider it necessary to rule on whether the second
sentence of the first paragraph of Article 1 applies in this
case. The complexity of the factual and legal position
prevents its being classified in a precise category.”111
Holding that it should examine the case “in the light of
[the] general rule” (1-1-1),112 the Court then paraphrases
what it said in Iatridis:
“Furthermore, the issue of whether a fair balance has
been struck “becomes relevant only once it has been
established that the interference in question satisfied the
requirement of lawfulness and was not arbitrary.”113
In this case, the requirement of lawfulness was met, and
therefore a fair balance test was required. This was
resolved in the Applicant’s favour, with the Court finding
that P1-1 had indeed been violated.
In Belvedere Alberghiera v Italy,114 the Applicant owned
the Belvedere Hotel in Monte Argentario, as well as a
strip of land linking the hotel to the sea. In May 1987,
Monte Argentario municipality decided to build a road
across this strip of land. Belvedere Alberghiera’s many
lawsuits failed, and the road was largely completed by late
1987. The company alleged an infringement of P1-1.
The Court begins by stating “that it is common ground
that there has been a deprivation of possessions.”115
Once again, the Court now takes the Iatridis approach,
stating that the interference’s satisfaction of “the
requirement of lawfulness” would presuppose any fair
Inconsistent application of the law, leading to
unforeseeability, as well as the way in which Belvedere
Alberghiera was “presented with a fait accompli”,117
resulted in the Court’s finding that the “requirement of
lawfulness” had not been complied with in this case:
“That conclusion makes it unnecessary for it to examine
whether a fair balance was struck between the
requirements of the general interest of the community and
the need to protect individual rights... Consequently, there
has been a violation of Article 1 of Protocol No. 1.”118
Belvedere Alberghiera differs slightly from Iatridis and
Beyeler in that here the interference was specifically
labelled as a deprivation. This is in some ways an
expansion of the Iatridis approach. Previously, it had only
been brought into play when “all else failed”. Now, the
Court seemed to be implying, it was to be adopted even in
standard 1-1-2 cases. Standard 1-1-2 cases invoke the
jumping through of some four hoops; the Iatridis approach
cuts this number to one. The Court’s motivation is
becoming increasingly apparent.
Finally, in Carbonara and Ventura v Italy,119 the four
Applicants owned agricultural land in Noicattaro. In 1963,
Noicattaro Town Council began the building of a school
on adjoining land; while underway, it became apparent
that an additional plot of land would be needed. Pursuant
to a decree from the Prefecture, Noicattaro Town Council
took possession in 1970 of 2,649 sq. m. of the Applicants’
land, with a view to formal expropriation at a later stage.
The school was completed in 1972; the Applicants waited
in vain for several years for the formal expropriation and
compensation. Finally, in 1980, they brought an action
only to be told, firstly, that they were too late, and
secondly, that Noicattaro Town Council had acquired
ownership of the land via “constructive expropriation”.
Before the European Court, the Applicants alleged a
breach of P1-1. As with Belvedere, the Court held that it
was “common ground that there ha[d] been a deprivation
Yet again, the Court opts for the Iatridis approach,
putting compliance with the requirement of lawfulness
ahead of all else. In the event, “constructive
expropriation” was deemed “unforeseeable”121 and
“arbitrary”,122 and thus not lawful. The Court thus made a
finding of incompatibility with Article 1.
The Iatridis cases raise many questions. In its creation of
the lawfulness test, was the Court inspired by the minority
in Sporrong? Are the lawfulness cases an alternative to, or
a replacement for, the other two categories (deprivation
2008] UNLOCKING PROTOCOL NO. 1: PROTECTION OF PROPERTY AND THE EurCourtHR 213
108 Paragraphs 108 and 109. The Court condemned Turkey in
almost identical terms (and with identical lack of reasoning) two
months later in Dulașv Turkey, Application 25801/94, not
published. A similar lack of analysis regrettably blights the case of
Cyprus v Turkey, Reports of Judgments and Decisions 2001-IV,
22 HRLJ 217 (2001). One of only a handful of inter-State cases
since the Court’s inception, this of course concerns the grievances
felt by Cyprus in respect of the Turkish military operations in the
north of the island in July and August 1974. Among many other
allegations are claims of breaches of P1-1 as regards, firstly, those
who were displaced, and secondly, those Greek Cypriots who
became “enclaved” in Northern Cyprus. A total of three violations
of the provision were found, but the lack of analysis leaves the
feeling that there are questions unanswered; see the interesting
dissenting opinion of Judge Fuad. The lack of reasoning is all the
more disappointing as in the earlier, similarly-themed case of
Loizidou v Turkey, Reports 1996-VI, 16 HRLJ 15 (1995), much
greater attention was paid to the wording of the provision.
109 While lack of spaceprevents a full exploration of this
second “approach”, two other illustrations definitely worth noting
are Pialopoulos and other v Greece, Application 37095/97, not
published, concerning the building of a multi-storey shopping
centre, and S.A. Dangeville v France, Reports of Judgments and
Decisions 2002-III , concerning a VAT re-imbursement.
110 Reports of Judgments and Decisions 2000-I, 21 HRLJ 61
111 Paragraph 106, emphasis added.
113 Paragraph 107.
114 Reports of Judgments and Decisions 2000-VI.
115 Paragraph 52.
116 Paragraph 55.
117 Paragraph 59.
118 Paragraphs 62 and 63.
119 Reports of Judgments and Decisions 2000-VI.
120 Paragraph 59.
121 Paragraph 65.
and control)? If the intention is to save time, what about
the fact that if the lawfulness test is passed, the Court must
still proceed to fair balance in any event? It will probably
take many more years for the answers to these questions
to become clear.123
And so we see how some of the ideas from section C
have evolved over the last ten years. However, that is not
to say that the “old” approaches of sections A and B have
been completely abandoned. In Former King of Greece
and others v Greece,124 former King Constantinos of
Greece, who had been deposed in 1973, saw ownership of
all of his property transferred to the State. The Court,
declaring this to be a deprivation, took a traditional 1-1-2
approach, concluding that there had been a violation of
P1-1 (the key factor being the lack of compensation).
In Kozacıog˘lu v. Turkey,125 the building at the centre of
the case, which was bought by Mr Kozacıog˘ lu in the 1930s,
and which became a listed building in 1990, was
expropriated by the State in 2000. Over the next two years
there was considerable disagreement as to the amount of
compensation which Mr Kozacıog˘lu should receive,
matters being complicated by the fact that Turkish law
prohibited the taking into account of a building’s
architectural or historical features, or those resulting from
its rarity, when a cultural asset was being assessed as to its
value. This rule, according to Mr Kozacıog˘lu, caused a
considerable reduction in the amount of compensation
which he stood to receive. The Court again declared that
this was a deprivation, and proceeded to work through the
stages of the conventional 1-1-2 enquiry with admirable
diligence. Concluding with proportionality / fair balance,
the Court once again demonstrated how intertwined these
two tests are, citing case-law from both Section A
(Sporrong and Lönnroth), and Section B (Pressos), as well
as two cases from this section (Beyeler and The former
King of Greece). The main issue affecting the
proportionality test was, as in the latter case,
compensation. The Court reiterated that full
compensation was not guaranteed, especially if the
expropriation pursued a legitimate aim (which the
protection of cultural heritage was); as authority for this
proposition, the Court chose, inter alia, Lithgow (see
Section D above). However, the State’s total failure to
consider the listed building’s architectural or historical
features, or its rarity, placed an excessive burden on Mr
Kozacıog˘lu’s side of the scale; he was effectively unable to
take advantage of any appreciation in the value, while the
State could take advantage of the depreciation caused by
the fact of listing itself. Under such unfair circumstances,
the deprivation of property could not be regarded as
proportional, meaning that P1-1 was once again violated.
In control cases too, the Court has sometimes decided
that the old ways are the best. In Bosphorus Hava Yolları
Turizm ve Ticaret Anonim Șirketi v. Ireland,126 a Turkish
airline charter company, which had leased two aircraft
from JAT “Yugoslav Airlines”, found one of them
grounded in Ireland (where it was receiving repairs) owing
to UN and EC sanctions imposed on Serbia and
Montenegro. The Court decided that this was an instance
of control, and proceeded to follow each of the
components of a traditional 1-2 enquiry, concluding that
there was no violation of P1-1.127
Finally, the last ten years have also seen many cases
concerning the “denationalization” of property in the
former Eastern bloc countries, that is, where the original
owners seek the return of property nationalized by the
State.128 These will not be gone into in particular detail in
At Annex I to this article (see at p. 215), the author
attempts a “road map” for Article 1, Protocol 1. It is
primarily intended as a ready reckoner for practitioners,
undertaking a right to property case for the first time. It is
hoped that the map will help these practitioners to find
And yet, the creation of the road map has merely
underlined, for this author, the continuing confusion that
exists in respect of this provision. As was mentioned at the
beginning of section C, the cases do not all fit a pre-set
blueprint; indeed, it often seems that the exceptions
outnumber the rules. We have seen this time and again in
the article. Take, for example, Matos e Silva, where,
although a “control” case, the Court missed out 1-2 and
jumped straight to 1-1-1. Or Pressos Compania Naviera,
where some of the limbs of 1-1-2 were simply ignored. Or
the several anomalous cases, like Stran Greek Refineries,
where public interest was the only factor to be considered
under the fair balance test.
Let us consider deprivation and control for a moment.
Where the State interferes with an individual’s property,
does the Court really care if it is deprivation or control, or
does it only care that the limitation should not be too
214 HUMAN RIGHTS LAW JOURNAL [Vol. 29, No. 6-9
123 Again space constraints prohibit a fuller examination of the
third “approach”, but suffice it to say that it is still alive and well,
in cases as recent as Börekçiog˘ulları (Çökmez) and Others v.
Turkey (judgment of 19 October 2006), Application 58650/00, not
published, concerning use by the State of a plot of land for
military purposes, and Edwards v Malta (judgment of 24 October
2006), Application 17647/04, not published, concerning the
requisitioning of four tenements belonging to Major Edwards for
the purpose of providing housing for the homeless. The latter case
is interesting because, like Belvedere, it extends the category of
Iatridis cases from those which defy regular categorization, to
those which happily submit to regular categorization (in this case,
the interference was a control of use).
124 Reports of Judgments and Decisions 2000-XII.
125 Application 2334/03, Grand Chamber judgment .
126 Application 45036/98, ECHR 2005-VI.
127 This case is, justly, remembered for being the one in which
the European Court of Human Rights gave its blessing to the
protection, by the European Court of Justice, of fundamental
rights. The Luxembourg judges had always been regarded by
some as slightly inferior when it came to rights matters, and yet
here their Strasbourg brethren gave them an enormous seal of
approval. That said, subsequent ECJ cases make one wonder if it
was truly deserved; see, for example, the woeful P1-1 analysis in
Case T-362/04, Leonid Minin v Commission,  ECR II-2003.
128 E.g. Popescu v Romania, Application 21397/02, not
published; Vidrascu v Romania, Application 23576/04, not
published; Tarbuc v Romania, Application 2122/04, not published.
The technique adopted by the Court here seems to be a variant of
the first of the “approaches” discussed above, only this time it is
1-1-2 (deprivation) and 1-1-1 (fair balance) which are “melded”.
129 But, for more on this category of case, see Karadjova,
“Property restitution in Eastern Europe: domestic and
international human rights law responses”, Review of Central and
East European Law 2004, v. 29, n. 3, pp. 325-363. Sometimes
denationalization can be followed by renationalization. We read
that the owners of the Russian oil company Yukos are bringing a
case before the European Court alleging interference by Russia
with the enjoyment of their property: Yukos press release, 10
October 2005. It could be, says the company’s legal team, “the
biggest claim ever submitted to this or any other court in the
world”: J Robins, “Eastern Front: Yukos drags on” Law Society
Gazette (London 2 April 2009) 13. The Yukos case is pending
before the First Section of the Court, Application 14902/04.
second sentence of the first paragraph (1-1-2), namely that
the State’s depriving the owner of his property must be
proportional. It is, said the Court in James,
“inconceivable” that a 1-1-2 analysis could lead to a
different result to a 1-1-1 analysis. The two analyses, then,
fair balance and proportionality, are unified. Again, we
have seen this throughout the article.
Thus, although the “road map” at Annex I bifurcates,136
in some ways this is a false bifurcation, because (as in fact
already mentioned above) the “destination” is in all cases
the same. This begs the wider question, is the Court of
Human Rights slowly recasting Article 1 of Protocol No. 1
into an “easier”, more manageable, measure? Are the
three sentences of the Article being amalgamated, with a
little help from judicial activism?
Where once there stood a disconcerting, three-headed
Cerberus, watching over Europe’s property, there may
henceforth be just a regular, one-headed guard dog. Only
time will tell, though, if the standard of protection remains
2008] UNLOCKING PROTOCOL NO. 1: PROTECTION OF PROPERTY AND THE EurCourtHR 215
130 The same factors (foreseeability, for example) apply
whether it is an instance of control or an all-out deprivation. See
Tre Traktörer in section A, and Hentrich in section B.
131 Coban (n. 8), p. 23.
132 Coban (n. 8), p. 118.
133 Frigo, see supra n. 85, at p. 60. Sometimes the criteria elude
not just the reader, but the Court itself. In the Pye litigation (J.A.
Pye (Oxford) Ltd v. the UK (judgment of 15 November 2005),
Application 44302/02, not published, and J.A. Pye (Oxford) Ltd
and J.A. Pye (Oxford) Land Ltd v the UK (judgment of 30 August
2007), Application 44302/02, not published), the Fourth Section
found the application of the principle of “adverse possession” in
the UK to be a deprivation, incompatible with P1-1, while on
appeal the Grand Chamber found the application of the same
principle to be an act of control, compatible with P1-1. For more
on the first instance case, see Goymour, “Proprietary claims and
human rights – a “reservoir of entitlement”?”, Cambridge Law
Journal, 65(3), November 2006, pp. 696-720.
134 Schutte, see supra n. 8, at p. 29.
135 Ibid., p. 34.
136 Just after the circle headed “1-1-2”.
restrictive in relation to its aim?130 To
provide a comparison, we could turn
again to the EU Charter of Fundamental
Rights, Article 17(1) of which was cited at
the end of section D. This makes no
distinction between deprivation and
control at all. Coban has commented on
this issue several times, saying, for
“There is no moral distinction between
depriving someone of some, or all of his
“The distinction between deprivation
and control on use does not seem
acceptable... Since the concept of
property comprises both use and
exchange values, there isn’t a significant
moral difference between partial and
Frigo talks of the “vague interpretative
tools” and “elusive criteria” used by the
Court when distinguishing between the
two concepts.133 Schutte speaks about
“the assimilation of the second and third
rules“134 and “the construction of one
general test”.135 Latterly, even the Court
itself appears to have stopped designating
whether an interference is a deprivation
or an act of control; see the cases and
discussion in section E.
Above all, it is the synonymity of the
“proportionality” enquiry and the “fair
balance” test which strikes the student of
P1-1. The first sentence of the first
paragraph (1-1-1) enjoins the Court to
“determine whether a fair balance was
struck”. So said the Court in Sporrong, at
Paragraph 69. Four years later, in James,
a final unwritten limb is added to the