EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

The fact that the domestic law of a State does not recognize a particular interest as a “property right” or that the right is revocable in certain circumstances does not necessarily prevent the interest in question from being regarded as a “possession” within the meaning of Article 1 ( Depalle v. France [GC], no. 34044/02, 29 March 2010, § 68; Öneryildiz v. Turkey [GC], no. 48939/99, 30 November 2004, § 129; Béláné Nagy v. Hungary [GC], no. 53080/13, 13 December 2016, § 76). In other words, the protected “possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant has at least a “legitimate expectation” of obtaining an effective enjoyment of a property right ( Pressos Compania Naviera S.A. and Others v. Belgium , no. 17849/91, 20 November 1995, § 31; Kopecký v. Slovakia [GC], no. 44912/98, 28 September 2004, § 35(c)). The right to property under Article 1 of Protocol No. 1 is not absolute but can be limited. However, any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim ( Béláné Nagy v. Hungary [GC], no. 53080/13 § 113; Lekić v. Slovenia [GC], no. 36480/07, 11 December 2018, § 105). The principle of a “fair balance” inherent in Article 1 of Protocol No. 1 itself presupposes the existence of a general interest of the community. Moreover, the various rules incorporated in Article 1 are not distinct, in the sense of being unconnected, and the second and third rules are concerned only with particular instances of interference with the right to the peaceful enjoyment of property (see Broniowski , cited above, § 148). The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In each case involving an alleged violation of that Article the Court must therefore ascertain whether by reason of the State’s interference the person concerned had to bear a disproportionate and excessive burden (see James and Others v. the UK , 21 February 1986, Series A no. 98, § 50; Mellacher and Others , 19 December 1989, Series A no. 169, § 48; and Spadea and Scalabrino v. Italy , 28 September 1995, § 33, Series A no. 315-B). In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. It must look behind appearances and investigate the realities of the situation complained of. In cases concerning the operation of wide- ranging housing legislation, that assessment may involve not only the conditions for reducing the rent received by individual landlords and the extent of the State’s interference with freedom of contract and contractual relations in the lease market, but also the existence of procedural and other safeguards ensuring that the operation of the system and its impact on a landlord’s property rights are neither arbitrary nor unforeseeable. Uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see Immobiliare Saffi , cited above, § 54, and Broniowski , cited above, § 151). The main object of Article 1 of Protocol No. 1 is to protect a person against unjustified interference by the State with the peaceful enjoyment of his or her possessions. However, by virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”. The discharge of this general duty may entail positive obligations inherent in ensuring the effective exercise of the rights guaranteed by the Convention. In the context of Article 1 of Protocol No. 1, those positive obligations may require the State to take the measures necessary to protect the right of property (see Broniowski , cited above, § 143, with further references, and Likvidējamā p/s Selga and Vasiļevska v. Latvia (dec.), nos. 17126/02 and 24991/02, §§ 94-113, 1 October 2013). However, the boundaries between the State’s positive and negative duties under Article 1 of Protocol No. 1 do not lend themselves to precise definition. The applicable principles are

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EUROPEAN COURT OF HUMAN RIGHTS IN ACTION