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35014/97 - Hutten-Czapska v. Poland

B.  Compliance with Article 1 of Protocol No. 1

1.  Applicable rules in Article 1 of Protocol No. 1

157.  Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to control the use of property in accordance with the general interest. 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 D. Meyer (see, among other authorities, James and Others v. the United Kingdom , 21 February 1986, §37, Series A no. 98, which reiterates in part the principles laid down by the Court in Sporrong and Lönnroth v. Sweden , 23 September 1982, §61, Series A no. 52; see also Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).

2.  The parties’ submissions

158.  The applicant relied on the arguments that she had submitted to the Chamber. In her view, the impugned restrictions had gone beyond what could be considered mere “control of the use of property”. Their continued application for many years had resulted in essential elements of her right of property being practically extinguished. In fact, she had been an owner only “on paper”. She did not have the possibility to decide who would live in her house and for how long. The lease of the flats had been imposed on her by unlawful administrative decisions but, despite that fact, she could not terminate the lease agreements and regain possession of her house because the statutory conditions attached to the termination of leases, including the duty to provide a tenant with substitute accommodation, made it impossible in practice to do so.

The applicant further stressed that she had had no influence whatsoever on the amount of rent paid by her tenants. Indeed, under the contested laws the levels of rent were fixed without any reasonable relationship to the costs of maintaining property in good condition. This had resulted in a significant depreciation in the value and condition of her own house. In her submission, the cumulative effect of all those factors had brought about a situation similar to expropriation.

159.  The Government disagreed and asked the Court to uphold the Chamber’s finding that the alleged interference had amounted to the control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1. They pointed out that the applicant had never lost her right to the “peaceful enjoyment” of her property. Since 25 October 1990, when the Gdynia District Court had entered her title in the relevant land register, she had enjoyed all the attributes of a property owner. She had a right to use, to dispose of, to pledge, to lend and even to destroy her property. The measures adopted, in particular the limitations on the level of rent chargeable, had therefore only amounted to a control of the use of the applicant’s property.

3.  The Court’s conclusion

160.  The Chamber shared the Government’s point of view (see paragraph 145 of the Chamber judgment).

It noted that, while it was true that the applicant could not exercise her right of use in terms of physical possession as the house had been occupied by tenants and that her rights in respect of letting the flats, including her right to receive rent and to terminate leases, had been subject to a number of legal restrictions, she had never lost her right to sell her property. Nor had the authorities applied any measures resulting in the transfer of her ownership. In the Chamber’s opinion, those issues concerned the degree of the State’s interference, and not its nature. All the measures taken, whose aim was to subject the applicant’s house to continued tenancy and not to take it away from her permanently, could not be considered a formal or even de facto expropriation but constituted a means of State control of the use of her property.

The Chamber therefore concluded that the case should be examined under the second paragraph of Article 1 of Protocol No. 1 (see Mellacher and Others v. Austria, 19 December 1989, § 44, Series A no. 169, and Immobiliare Saffi v. Italy [GC], no. 22774/93, § 46, ECHR 1999-V).

161.  The Grand Chamber fully agrees with the Chamber’s assessment.

4.  General principles deriving from the Court’s case-law

162.  The Court will consider the case in the light of the following principles.

(a)  Principle of lawfulness

163.  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. In particular, the second paragraph of Article 1, while recognising that States have the right to control the use of property, subjects their right to the condition that it be exercised by enforcing “laws”. Moreover, the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, mutatis mutandis, Broniowski, cited above, § 147, with further references).

37. Article 1 (P1-1) in substance guarantees the right of property (see the Marckx judgment of 13 June 1979, Series A no. 31, pp. 27-28, para. 63). In its judgment of 23 September 1982 in the case of Sporrong and Lönnroth, the Court analysed Article 1 (P1-1) as comprising "three distinct rules": the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (Series A no. 52, p. 24, para. 61). The Court further observed that, before inquiring whether the first general rule has been complied with, it must determine whether the last two are applicable (ibid.). 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.

2. The justification for the interference with the applicants’ right of property

61. It remains to be ascertained whether or not the interference found by the Court violated Article 1 (P1-1).

That 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 applicable.

38. Be that as it may, one must look beyond the appearances and the language used and concentrate on the realities of the situation (see notably, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, p. 23, par. 44).

This is a matter in which the Government enjoy a wide measure of discretion. Case-law and practice certainly confirm the meaning suggested by the text of section 25 of the 1964 Act ("if necessary") and the actual phrase "placing at disposal". In a judgment of 4 April 1978, the Belgian Court of Cassation observed that "execution of the penalty" in question "is to a large extent a matter for the discretion" of the Minister of Justice (Pasicrisie 1978, I, p. 861). One finds that far less fetters are imposed on Ministerial decisions by a court’s decision to apply the Social Protection Act than in the analogous area of the system of placing vagrants "at the Government’s disposal" (Act of 27 November 1891; see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 24-25, par. 37, and pp. 33-34, par. 61). In short, to adopt the language used by the Commission’s Delegate, "the court decision does not order the detention" of recidivists and habitual offenders: it "authorises" it.

44. However, the prominent place held in a democratic society by the right to a fair trial (see especially the above-mentioned Airey judgment, pp. 12-13, par. 24) prompts the Court to prefer a "substantive", rather than a "formal", conception of the "charge" contemplated by Article 6 par. 1 (art. 6-1). The Court is compelled to look behind the appearances and investigate the realities of the procedure in question.

D. Meyer at July 17, 2006 10:43

In my opinion, the way how interference with the right to peaceful enjoyment of property is approached in this case can be useful in a wide spectrum of cases

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