The “three norms” approach to unhindered use of property rights

08/ 12/ 2022

Listen to online Stop   Author: Oleksiy Hrachov, attorney at Dynasty Law & Investment Currently, the issue of preserving property rights is becoming topical for individuals and legal entities of Ukraine. They have to not only defend their title from foreign countries, but also to confirm it at the national level. And when the application of domestic legislation or recourse to bilateral intergovernmental agreements does not bring the desired legal consequences, the owners can only appeal to Article 1 of Protocol No. 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms. This article contains three related norms related to the protection of property rights: The first is a norm of a general nature and establishes the principle of unhindered ownership of property. The second norm concerns deprivation of property and the conditions under which such deprivation becomes possible. The third - normalizes control over ownership of property depending on the public interest. According to the modern practice of the European Court of Human Rights, the most effective way to complete the review of a complaint about the violation of property rights is by convincing the Court of the violation of the first of the three norms, without analyzing the application of the provisions on deprivation of property and control over its ownership. Therefore, it is imperative to formulate the complaint in such a way that it becomes clear to the Court that the violation of the right to property does not comply with the principle of legality and does not pursue a legitimate goal by means that are reasonably proportionate to the goal that needs to be achieved, and also does not meet the clear needs of society.

Author: Oleksiy Hrachov, attorney at Dynasty Law & Investment

Currently, the issue of preserving property rights is becoming topical for individuals and legal entities of Ukraine. They have to not only defend their title from foreign countries, but also to confirm it at the national level. And when the application of domestic legislation or recourse to bilateral intergovernmental agreements does not bring the desired legal consequences, the owners can only appeal to Article 1 of Protocol No. 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms.

This article contains three related norms related to the protection of property rights:

• The first is a norm of a general nature and establishes the principle of unhindered ownership of property.
• The second norm concerns deprivation of property and the conditions under which such deprivation becomes possible.
• The third – normalizes control over ownership of property depending on the public interest.

According to the modern practice of the European Court of Human Rights, the most effective way to complete the review of a complaint about the violation of property rights is by convincing the Court of the violation of the first of the three norms, without analyzing the application of the provisions on deprivation of property and control over its ownership. Therefore, it is imperative to formulate the complaint in such a way that it becomes clear to the Court that the violation of the right to property does not comply with the principle of legality and does not pursue a legitimate goal by means that are reasonably proportionate to the goal that needs to be achieved, and also does not meet the clear needs of society.