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1
Ristik, Jelena. "Right To Property: From Magna Carta To The European Convention On Human Rights." SEEU Review 11, no. 1 (December 1, 2015): 145–58. http://dx.doi.org/10.1515/seeur-2015-0018.
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Abstract Property rights are integral part of the freedom and prosperity of every person, although their centrality has often been misprized and their provenance was doubted. Yet, traces of their origin can be found in Magna Carta, signed by the King of England in 1215. It was a turning point in human rights. Namely, it enumerates what later came to be thought of as human rights. Among them was also the right of all free citizens to own and inherit property. The European Convention on Human Rights was heavily influenced by British legal traditions, including Magna Carta. Among other rights, it also guaranties the right to property as a human right. Moreover, the protection of property rights has been extended to intellectual property rights as well. Namely, the European Court of Human Rights has provided protection of intellectual property rights through the adoption of decisions that interpret the right to property, in relation to intellectual property protection claims. It has extended the human rights protection of property to the mere application for registration of the trade mark. This paper has placed its focus on the development and treatment of the right to property starting from Magna Carta to the European Convention on Human Rights, as modern version of Magna Carta. In this sense, the jurisprudence of the European Court of Human Rights and its role and approach in the protection of the right to property will be examined as well.
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Mihelčić, Gabrijela, and Maša Marochini Zrinski. "Suživot negatorijske zaštite od imisija i prava na život u zdravoj životnoj sredini." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 39, no. 1 (2018): 241–68. http://dx.doi.org/10.30925/zpfsr.39.1.8.
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The authors analyse the national protection from emissions, in the first place, a property law component of this regime. Domestic regulation of the protection of property rights from harassment was brought in the perspective of the protection that the European Court of Human Rights provides for the right to live in a healthy environment, primarily through the protection of rights under Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (right to respect for private and family life and home). In the context of the latter, the authors have analysed the interpretative methods used by the European Court and explored the following features: the requirement that environmental and environmental impacts and disturbances violate the Convention right, that is, the existence of a specific Convention causal link; the category of minimum level of severity; oscillation of the "quantum" of minimum level of severity within conventional "fluctuations"; and the scope (and type) of protecting the right to live in a healthy environment through the paradigm of the positive / negative obligations of the Contracting States.
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Cioclei, Valerian. "Proprietatea în dreptul penal roman. Mijloace de protecție, noțiune și obiect." Analele Universitării din București Drept 2019 (March 26, 2020): 66–71. http://dx.doi.org/10.31178/aubd.2019.07.
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The property right is guaranteed by the Romanian Constitution and by the international conventions, especially by the European Convention of Human Rights. Concretely, the Civil Code protects the property right. In a subsidiary manner, after the constitutional, conventional and civil law, the criminal law also ensures the protection of property. This brief article will reveal the means in which such protection is ensured within the Romanian Criminal Code, as well as the concept and the object of such criminal protection.
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Allegranti, Ivan. "‘The Right to Remain and Produce in your Homeland’ in Light of Article 8 of the European Convention on Human Rights, The European Court of Human Rights Case Law and the Italian Constitution." Athens Journal of Law 8, no. 3 (June 30, 2022): 349–60. http://dx.doi.org/10.30958/ajl.8-3-7.
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The multi-level protection offered to the right to property is an element of the current Italian and European legal system. Reading Article 8 (respect to private and family life) and Article 1, paragraph 1 (property protection) of the European Convention on Human Rights (hereinafter ECHR) it is possible to state that the protection of someone’s property has gone beyond the physical object. This interpretation, which derives from an approach which underlines the social function of property, has been strengthened by the ECHR that, during the last 20 years, has extended the concept of property. Thanks to it, it is possible to affirm the existence of a right to remain in one’s own land before, during and after an emergency, caused by a natural, health or man-made disaster. Also, trough the reading of Articles 41, 42 and 44 of the Italian Constitution it is possible to affirm the existence of this right within the Italian Fundamental Charter. In light of the above evolutions of the jurisprudence and of the interpretation of the concept of property within the Italian Constitution, this article analyses how this principle may apply also to people affected by natural hazards. Keywords: Property right; Right to remain in your homeland; Italian constitution; Natural disasters; European Court of Human Rights; Court of Justice of the European Union; European Convention Human Rights
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Ergec, Rusen. "Taxation and Property Rights under the European Convention on Human Rights." Intertax 39, Issue 1 (January 1, 2011): 2–11. http://dx.doi.org/10.54648/taxi2011001.
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Article 1 of Protocol 1 to the European Convention on Human Rights (ECHR) guarantees to every natural or legal person the right to peaceful enjoyment of his possessions. Taxation and enforcement measures relating thereto are considered by the European Court of Human Rights as an interference with the right to property as set out in the preceding provision. The Court has, accordingly, developed a case law reviewing the compatibility of such measures with, among others, the requirements of legality and proportionality. Although the Court grants a wide margin of appreciation to states as to taxation rate, procedural enforcement rules might come under close scrutiny. Other safeguards laid down in the Convention, such as the prohibition of discrimination, might foster the rule of law in issues of taxation. The study purports to underline the often underestimated potentialities of the protection afforded by the European Convention to taxpayers.
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Güvenir, Derya. "Minority Shareholders’ Right to Request the Postponement of General Meetings of Joint Stock Companies in Turkish Law." Athens Journal of Law 8, no. 3 (June 30, 2022): 329–48. http://dx.doi.org/10.30958/ajl.8-3-6.
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The multi-level protection offered to the right to property is an element of the current Italian and European legal system. Reading Article 8 (respect to private and family life) and Article 1, paragraph 1 (property protection) of the European Convention on Human Rights (hereinafter ECHR) it is possible to state that the protection of someone’s property has gone beyond the physical object. This interpretation, which derives from an approach which underlines the social function of property, has been strengthened by the ECHR that, during the last 20 years, has extended the concept of property. Thanks to it, it is possible to affirm the existence of a right to remain in one’s own land before, during and after an emergency, caused by a natural, health or man-made disaster. Also, trough the reading of Articles 41, 42 and 44 of the Italian Constitution it is possible to affirm the existence of this right within the Italian Fundamental Charter. In light of the above evolutions of the jurisprudence and of the interpretation of the concept of property within the Italian Constitution, this article analyses how this principle may apply also to people affected by natural hazards. Keywords: Property right; Right to remain in your homeland; Italian constitution; Natural disasters; European Court of Human Rights; Court of Justice of the European Union; European Convention Human Rights
7
Loghinescu, Petru. "Guarantees in case of deprivation of property under the law of the European Convention on Human Rights." Journal of the National Institute of Justice, no. 4(63) (December 2022): 51–55. http://dx.doi.org/10.52277/1857-2405.2022.4(63).09.
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From the content of the property right, the guarantees of protection against arbitrary or disproportionate forms of interference in the exercise of this fundamental right of the person result. Such interference may take the form of deprivation or limitation of rights. Every individual has the right to own property and to use the goods in his possession. Depriving the person of his property can only take place in the case of the existence of a public necessity. If these circumstances occur, the state is obliged to ensure fair compensation. Both governments and others are prohibited from assigning property without justification. In this article, we propose to analyze the relevant provisions of the European Convention on Human Rights, as well as the general principles established by the European Court of Human Rights in cases where deprivation of property is invoked.
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Šarkinović, Hamdija. "Ustavno i konvencijsko jemstvo prava svojine." Zbornik radova Pravnog fakulteta u Splitu 56, no. 2 (May 14, 2019): 443–67. http://dx.doi.org/10.31141/zrpfs.2019.56.132.443.
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The paper deals with property, which is guaranteed by Article 58 of the Constitution of Montenegro and Article 1 of Protocol No.1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The constitutional-law concept of the right to property in Montenegro is broader than the traditional civil law concept, as it includes all real rights, as the European Court under the notion of property, in addition to the usual, includes all acquired rights of a person. The autonomous concept of property and possessions within the meaning of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms was separately covered, consisting of three rules: principle of peaceful enjoyment of possessions, deprivation of possessions, and control of the use of property. The application of the text of justification of interference with property in the case law of the European Court is explained, which includes the text of legality, the text of a legitimate aim in the general or public interest and the text of proportionality. However, the case law of the ordinary courts in the field of guarantees of property rights, constitutional and convention’s is not harmonized with the case law of the European Court of Human Rights and represents one of the main tasks of the Constitutional Court in the coming period. The Constitutional Court of Montenegro follows the concept of property enshrined in the Constitution and gives the property meaning as the constitutional and convention human right guaranteed by the Constitution, and its inviolability as one of the fundamental values of the constitutional order, although the case law of the Constitutional Court has not fully and always been coherent with the aforementioned principles.
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Mihelčić, Gabrijela, and Maša Marochini-Zrinski. "Should negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to live in a healthy environment?" Glasnik Advokatske komore Vojvodine 94, no. 3 (2022): 767–823. http://dx.doi.org/10.5937/gakv94-38979.
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In this paper, the authors rely on the results of scientific research based on which they concluded that although there are notable differences between the Croatian national regulation of immission protection and the one provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and taking into account the role of the Convention (the principle of subsidiarity), it is not inconceivable that protecting this right (which all states are obligated to protect) strengthens the position of the authorized national representative for negatory protection (e.g., the possibility of determining the basis relevant for negatory action in a less complex way; removing discrepancies, such as, for example, the requirement that proprietary legal protection of ownership and other proprietary rights against immissions is preceded by protections pursuant to special regulations, etc.). In this light, the authors analyse recent Convention case-law and compare the regulation of negatory action (protection of property from harassment) with the protection of a specific right established by the Convention - the right to live in a healthy environment based on Article 8 of the Conventionthe right to respect for private and family life, home and correspondence. Exhaustively analysing the right to live in a healthy environment, they explain the interpretative methods and principles used by the European Court in detail, continuing their research concerning this issue. The main focus is on exploring the features of previously postulated rights: the requirement that the human rights protected by the Convention are violated by adverse environmental factors (that is, the existence of a specific Convention causal link); the category of a minimum level of severity; oscillation of this "quantum" of the minimum level of severity within Convention "fluctuations" and the scope (and type) of protection of the right to live in a healthy environment through the paradigm of the positive/negative obligations of the contracting states; naturally, bearing in mind the more recent cases brought before the Court. In conclusion, the authors answer the question postulated in the title of the paper.
10
Sanderson, M. A. "Protection of Property Rights Within the European Convention on Human Rights." Modern Law Review 68, no. 4 (July 2005): 698–701. http://dx.doi.org/10.1111/j.1468-2230.2005.557_2.x.
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Kapuy, Klaus. "Social Security and the European Convention on Human Rights: How an Odd Couple Has Become Presentable." European Journal of Social Security 9, no. 3 (September 2007): 221–41. http://dx.doi.org/10.1177/138826270700900302.
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For more than twenty years now, the European Convention on Human Rights has been used to solve disputes in social security. This is peculiar since the Convention itself and its Protocols primarily comprise civil and political rights and do not include a right to social security. This article analyses the supervisory bodies' case law to establish how national disputes over contributions or cash-benefits under statutory social insurance and social assistance scheme have attracted the protection of the Convention. It also provides an overview of the types of social security cases which today fall within the ambit of particular rights guaranteed by the Convention. It concludes that the right to a fair trial (Article 6(1)) and the protection of property (Article 1 of the First Protocol to the Convention) are, as a general rule, applicable in the field of social security. By contrast, the protection of family life and the protection of private life (Article 8) have, in social security matters only, only been accepted as applicable in the context of particular branches of social security or in relation to particular groups of beneficiaries.
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Mozhechuk, Lyusya, and Andriy Samotuha. "Role of the European Court of Human Rights in realization of social security right." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 2, no. 2 (June 3, 2020): 55–63. http://dx.doi.org/10.31733/2078-3566-2020-2-55-63.
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The article deals with the role of the European Court of Human Rights (ECtHR) in protecting the right to social security. There is the analysis of the case law of the ECtHR on the violation of the right to social security, namely the right to receive a pension, which the ECtHR classifies as property rights. The authors have outlined the ways to improve the practice of the ECtHR in this area in modern national and world socio-economic conditions. According to available estimates, around 50 per cent of the global population has access to some form of social security, while only 20 per cent enjoy adequate social security coverage. Ensuring an ap-propriate mechanism for the protection of human and civil rights is a priority for every country. However, according to case law, the number of complaints of violations or non-recognition of their rights is growing every year. An important role in the protection of human rights in today's conditions is played by an international judicial body - the European Court of Human Rights. In Ukraine, where socio-economic rights are recognized at the constitutional level, their guarantee content in the current laws is still not clearly defined, and therefore, as evidenced by the practice of the Constitutional Court of Ukraine, legal mechanisms their protection, in particular the means of judicial control remain ineffective. The right to social security is the right to access and retention of benefits, both in cash and in kind, without discrimination in order to protect, in particular, against (a) lack of income from work caused by illness, disability, maternity, occupational injuries , unemployment, old age or death of a family member; (b) inaccessible access to medical care; (c) insufficient family support, especially for children and adult dependents. It is well known that the European Convention does not contain many socio-economic rights as such (with a few exceptions - protection of property and the right to education). Thus , the former president of the ECtHR Jean-Paul Costa specifically pointed to another important European human rights treaty – the European Social Charter. Human rights are a universal value, and their protection is the task of every state. The European Court of Human Rights plays an important role in protecting human rights in modern conditions. The functioning of such an international judicial institution can not only solve a problem of protection of violated rights, but also affect the development of the judicial system of each state. The main principle of realization and judicial protection of social rights is non-discrimination on the grounds of sex, age, race, national and social origin of the individual, and the role of auxiliary institutions of the Council of Europe in generalizing and improving the ECtHR’s activity has been emphasized.
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Lundmark, Mikael. "The European Court of Human Rights and the Protection of Arctic Indigenous Peoples Rights." Yearbook of Polar Law Online 9, no. 1 (December 8, 2018): 24–52. http://dx.doi.org/10.1163/22116427_009010003.
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Based on an ongoing case in Sweden, where Girjas Sami village sued the Swedish state for violation of property rights, this article examines the European Court of Human Rights’ potential influence in the Arctic region’s legal system when it comes to protection of property of Arctic indigenous peoples. This article shows that notwithstanding the historical background of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the case law of the Court provides a solid foundation to advocate that the Court can take a more active role in protecting the rights of Arctic indigenous peoples. What is different in the case of indigenous peoples is that their rights pre-exist that of a modern state, and this does not correlate with the structure of the Convention, which seemingly leads to less protection under the Convention for indigenous peoples. This puts a higher level of responsibility both upon the applicants, as well as on the Court to scrutinize, and apply, the case law of the Court in line with the Convention and the adopted principle of interpretation.
14
van den Broek, Peter. "The Protection of Property Rights under the European Convention on Human Rights." Legal Issues of Economic Integration 13, Issue 1 (June 1, 1986): 52–90. http://dx.doi.org/10.54648/leie1986002.
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Allen, Tom. "LIBERALISM, SOCIAL DEMOCRACY AND THE VALUE OF PROPERTY UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS." International and Comparative Law Quarterly 59, no. 4 (October 2010): 1055–78. http://dx.doi.org/10.1017/s0020589310000448.
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In most of Europe, expropriation must comply with the standards set under European human rights law. Article 1 of the First Protocol (‘P1-1’) to the European Convention on Human Rights declares that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions.’ The European Court of Human Rights has stated that the right would be ‘largely illusory and ineffective’ if it did not guarantee full compensation in all but exceptional circumstances.1It is quite clear, however, that this was not the belief of at least some of the States that had signed it when it came into force in 1954. P1-1 makes no reference to compensation. An interference must be lawful, and in the public or general interest, but there is nothing that expressly requires compensation. Nevertheless, the Court has declared that any interference with the right to the peaceful enjoyment of possessions must strike a ‘‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights’,2and this means that expropriation without compensation that is reasonably related to the value of the property would normally violate the owner's rights under P1-1.3
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Bazhenova, Anastasiia, Anatolii Desyatnik, Hanna Mudretska, and Inna Rakipova. "Ensuring the detection of property in the institute of property seizure." Revista Amazonia Investiga 10, no. 42 (July 30, 2021): 236–47. http://dx.doi.org/10.34069/ai/2021.42.06.22.
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The article is devoted to the study of certain issues of property detection in the institution of seizure of property. On the basis of comparative legal analysis, the possibility of ensuring the detection of property using search and seizure within the Criminal Procedure Code of the past and modern Criminal Procedure Code of Ukraine and foreign countries was assessed. The rights of the victim under the Convention for the Protection of Human Rights and Fundamental Freedoms are analyzed in terms of his/her right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law to decide his/her civil rights and obligations. The application of the criminal procedural legislation of Ukraine is analyzed taking into account the practice of the European Court of Human Rights on the protection of human rights in relation to the rights of individuals or legal entities to peacefully own their property. Emphasis is placed on the fact that the previous provisions do not in any way restrict the right of the state to enact such laws as it deems necessary to exercise control over the use of property in accordance with the general interest. Scientific methods such as analysis, synthesis, formal-legal and comparative-legal method became the methodological basis of the research.
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Maffei, Maria Clara. "The Right to ‘Special Food' under Art. 9 of the European Convention on Human Rights." DIRITTI UMANI E DIRITTO INTERNAZIONALE, no. 1 (March 2012): 101–25. http://dx.doi.org/10.3280/dudi2012-001004.
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The article analyzes some paradigmatic cases concerning the religious or cultural value of food which have been brought to the attention of the monitoring bodies instituted by the European Convention on Human Rights. Problems may arise in particular when individuals (e.g. prisoners, hospitalized people, military personnel, children at school) have to rely upon the State to provide sustenance. However, the Convention contains no reference to cultural or religious aspects of food nor to cultural rights in general. From this analysis it emerges that a right to "cultural" food could be framed in "wider" rights (e.g. freedom of thought, conscience and religion, right to respect for private and family life, protection of property, prohibition of torture) as it is an aspect of them. While it is clear that not all dietary choices deserve protection and abuses should be avoided, the different interests of the State should be balanced against the interests of individuals who need special food for religious, conscience or cultural reasons. The balance has to be fair and this includes the possibility for States to offer valid dietary alternatives, although in some cases, as for many other human rights, States will continue to be able to restrict the rights of individuals on different grounds.
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Morrow, Karen. "After the Honeymoon: The Uneasy Marriage of Human Rights and the Environment Under the European Convention on Human Rights and in UK Law Under the Human Rights Act 1998." Revue générale de droit 43 (January 13, 2014): 317–68. http://dx.doi.org/10.7202/1021217ar.
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The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR) regime has, in the absence of specific coverage of environmental rights, developed a “creative” approach in its jurisprudence in this area, pressing a variety of other rights, notably: Article 6 (the right to a fair hearing); Article 8 (the right to privacy and family life); and Article 1 to the First Protocol of the ECHR (the right to enjoyment of property) into service. This creativity has achieved much in according indirect protection to individuals in this regard, but has also placed additional pressure on the already congested Convention system. The entry into force of the Human Rights Act 1998 (HRA) made long-held rights under the ECHR directly accessible in domestic law in the United Kingdom. This naturally spawned a wave of litigation. One of the most prominently litigated areas concerned the pursuit of a variety of environment-based rights claims. In the intervening decade, the application of the ECHR to environmental claims in the UK courts has generated somewhat mixed results. This is in part a result of the “patchwork” approach that has developed toward environmental claims within the Convention regime itself, but it is also a product of the nature of the relationship between the ECHR and domestic law and the content and ethos of both regimes. This article will conclude by briefly considering the on-going role of the ECHR regime in environmental cases in light of subsequent developments in this area of law, notably under the Aarhus Convention.
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Tomlyak, Taisa. "PROTECTION OF PROPERTY RIGHTS IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS." EurasianUnionScientists 4, no. 6(75) (July 21, 2020): 52–59. http://dx.doi.org/10.31618/esu.2413-9335.2020.4.75.850.
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The article considers the legal positions of the European Court of Human Rights (hereinafter - Сourt). In particular, the decision of the Сourt in cases of legality of interference with property rights was examined in the light of the provisions of Protocol № 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter Protocol №1 to the Convention). Also, the article specifies the principles that, in the opinion of the Сourt, the state must adhere to when interfering in property rights. In addition, it is established that the concept of "property" within the meaning of Part 1 of Art. 1 of Protocol No. 1 to the Convention has an independent meaning. That is, this concept cannot depend on its legal classification in national law and cannot be limited to ownership of things. Also, we considered a broad understanding in the practice of the Сourt "interests of society" in the application of measures of deprivation of property rights and ensuring a proportional relationship between the goal and the means used. In addition, the relationship between Article 1 of Protocol No. 1 and other articles of the Convention is considered, as issues arising in connection with the use of one's "property" may also relate to other articles of the Convention. Some decisions of the Court of Human Rights and its interpretation of the concepts of "property", "property" and "property rights" are analyzed.
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Praduroux, Sabrina. "The European Convention on Human Rights and Environmental Nuisances." European Review of Private Law 16, Issue 2 (April 1, 2008): 269–81. http://dx.doi.org/10.54648/erpl2008021.
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Abstract: In as much as environmental nuisances caused by industrial activities can have adverse effects on both the economic and the amenity value of an area, from the European Convention on Human Rights perspective they can be seen to interfere with either the right of property or the right to respect for private and family life. The current case law of the Strasbourg Court shows the Court’s preference for applying Article 8, which protects the right to respect for private and family life, and which affords, especially from the procedural point of view, a less far–reaching protection than Article 1 of Protocol No. 1, concerning the right of property. Résumé: Considéré que les émissions nocives causées par l?exploitation d?une activité industrielle peuvent avoir une incidence négative autant sur la valeur économique que sur la beauté d?un lieu, elles peuvent, dans la perspective de la Convention européenne des droits de l?homme, être considérées en tant qu?une ingérence aussi bien dans le droit de propriété que dans le droit au respect de la vie privée et familiale. Toutefois, de la jurisprudence de la Cour de Strasbourg il ressort que la Cour préfère appliquer l?article 8, qui protège le droit au respect de la vie privée et familiale et qui offre, spécialement sur le plan procédural, des garanties moindres que celle prévues dans le cadre de l?article 1 du Protocole 1 consacré au droit de propriété. Zusammenfassung: Insofern durch die Industrie verursachte Umweltbeeinträchtigungen negative Auswirkungen sowohl auf den wirtschaftlichen Wert als auch auf den Annehmlichkeitswert eines Gebietes haben können, können diese aus der Perspektive der Europäischen Menschenrechtskonvention als Eingriff entweder in das Recht auf Eigentum oder in das Recht auf Achtung das Privat- und Familienlebens betrachtet werden. Gegenwärtige Rechtsprechung des Straßburger Gerichtshofes zeigt die Präferenz des Gerichtshofes für die Anwendung von Artikel 8, welcher das Recht auf Achtung des Privat- und Familienlebens schützt und welcher ? insbesondere vom verfahrensrechtlichen Standpunkt ? einen weniger weitreichenden Schutz als Artikel 1 des 1. Zusatz-protokolls hinsichtlich des rechts auf Eigentum gewahrt.
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Leijten, Ingrid. "The right to minimum subsistence and property protection under the ECHR: Never the twain shall meet?" European Journal of Social Security 21, no. 4 (December 2019): 307–25. http://dx.doi.org/10.1177/1388262719892466.
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This article discusses recent developments concerning the right to minimum subsistence as a matter of property protection under the European Convention on Human Rights. It starts with two recent cases: Bélané Nagy v. Hungary and Baczúr v. Hungary. In its judgments in these cases, the European Court of Human Rights emphasised that, in determining whether an interference with a benefit is proportional, an important consideration is whether the individual still receives a subsistence minimum. It moreover held that a right to a (minimum) benefit can exist even if the conditions for receiving this benefit have not been met. Read together, Bélané Nagy and Baczúr flag an increasingly social interpretation of the property right enshrined in Article 1 of the First Protocol to the ECHR involving positive obligations and a focus on the neediest. On a closer look, however, the Court’s interpretation is not a very straightforward one. Judgments rendered after Bélané Nagy and Baczúr show that, although there is a clear trend to protect claimants’ means of subsistence, the relationship between property and a right to such means remains opaque, and the potential of a property right to guarantee the latter, limited. In this article, I present the recent case law against the background of the increasing significance of Article 1 P1 in the field of social security as well as the obstacles to protecting a subsistence minimum. I will delineate the questions that promise to haunt the Court in the cases to come and explore some of the answers it could formulate in this regard. It is argued that a positive right to a subsistence minimum is, for various reasons, unlikely to be developed as a matter of property protection under the Convention.
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Nield, Sarah, and Nicholas Hopkins. "Human rights and mortgage repossession: beyond property law using Article 8." Legal Studies 33, no. 3 (September 2013): 431–54. http://dx.doi.org/10.1111/j.1748-121x.2012.00257.x.
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Following the Supreme Court decisions in Manchester CC v Pinnock and Hounslow CC v Powell, this article examines the possible impact of Article 8 of the European Convention on Human Rights and Fundamental Freedoms upon protection of the home in creditor repossession proceedings. The central argument advanced is that, although occupiers may not all be protected through property law, they may enjoy an independent right to respect for their home under Article 8, which should be acknowledged in the legal frameworks governing creditor's enforcement rights against the home. The article suggests that the most common creditor enforcement route, through mortgage repossession proceedings, falls short in this regard. It takes as its primary focus the treatment of children in such proceedings to provide an example of the potential for a human rights-based property protection heralded by these two Supreme Court decisions.
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Černý, Petr. "The Right of Assembly in Central Europe." Age of Human Rights Journal, no. 15 (December 15, 2020): 163–85. http://dx.doi.org/10.17561/tahrj.v15.5786.
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The article deals with the legal regulation of the right to freedom of peaceful assembly in Germany, Austria, the Czech Republic and the Slovak Republic with regard to the jurisdiction of the European Court of Human Rights (ECHR). The chosen topics focus on the definition of assembly, the relationship between freedom of expression and property rights together with the right of assembly. In each of above-mentioned countries, the assembly to which constitutional protection is granted, the definitiondiffers slightly; with the widest concept of assembly deriving from the judicature of the ECHR. The constitutional protection of the Assembly, in particular found in Germany and Austria, which is significantly narrower than the protection provided by the European Convention on Human Rights, may thus at some stage come into conflict with the requirements of the ECHR. The section devoted to freedom of speech deals, among other things, with cases exhibiting shocking photographs, which were part of the campaign against abortion, in front of schools in the Czech Republic and the Slovak Republic. In the future, the most serious problem is the conflict of the right of assembly along with the right of ownership, consisting in assemblies held on private property, which is used by the public, such as shopping malls, airports or railway stations. This has been the focus of the professional public and the courts for a long time, especially in Germany.
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Dobrev, M. V. "The concept of «property» (according to the practice of the European court of human rights)." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 368–71. http://dx.doi.org/10.24144/2307-3322.2021.64.67.
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The article is devoted to the autonomous meaning of the term «property» used by the European Court of Human Rights. Emphasis is placed on the fact that in national legal systems, approaches to defining the concept of proper-ty, property rights have been and remain different. The violation of property as ownership exclusively of material things, excluding other rights and interests (substantive legal interests), the application of a formal classification of objects of law leads to violations of the right of everyone to own, use and dispose of their property by public author-ities and local governments. property. As the judgment of the European Court of Human Rights is a source of law in the member states of the Council of Europe, national law cannot contradict the Convention and the case law of the European Court of Human Rights.It is noted that the European Court of Human Rights, applying the autonomous meaning of the term «proper-ty», which does not depend on the formal classification of property rights in the national legislation of the mem-ber states of the Council of Europe, applies the following approaches to the concept of «property», the concept and content of property rights. that would be compatible with national legal systems. As a result of the analysis of the case law of the European Court of Human Rights, it was established that «property» is: 1) ownership of existing material things; 2) assets, including claims that the entity can claim to have at least a «legitimate ex-pectation» that they will be realized; 3) other rights and interests that constitute assets and can be considered as «property rights».
Property that falls within the scope of Art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms constitute, inter alia, economic resources to which natural persons have no registered property rights, but which have originally belonged to their ancestors and parents for economic activities, as well as income that individuals receive from the use of these resources.
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Coe, Peter, and James Brown. "What’s in a Name? The Case for Protecting the Reputation of Businesses under Article 1 Protocol 1 of the European Convention on Human Rights." Journal of European Tort Law 10, no. 3 (January 10, 2020): 286–315. http://dx.doi.org/10.1515/jetl-2019-0123.
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AbstractThis article approaches corporate reputation from an English law perspective. It argues that corporate reputation is at least as important as individual reputation, as it is not only vital for the health and prosperity of businesses themselves (whether large or small), but also for the communities within which they operate. Following analysis of conflicting jurisprudence from the European Court of Human Rights, which has led to a lack of clarity within English law, this paper contends that business reputation should be subsumed within the concept of property. Such an approach would then enable businesses to avail themselves of a positive right to the protection of reputation, as property, under Article 1 Protocol 1 of the European Convention of Human Rights.
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Yakimova, E. M. "Practice of the European Court of Human Rights in defining the range of permissible restrictions on the freedom to conduct a business." Law Enforcement Review 6, no. 1 (March 24, 2022): 205–15. http://dx.doi.org/10.52468/2542-1514.2022.6(1).205-215.
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The subject of the article is the application of the concept of the range of permissible restrictions on rights and freedoms that not enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms in the practice of the European Court of Human Rights.The purpose of the research is to identify the basic position of the Court on the question of determining the degree of proportionate balance between public and private interests in establishing restrictions on the rights and freedoms of a person in the sphere of business activity.The methodology. In the process of the research, both general scientific and special methods of knowing socio-legal phenomena (formal legal method, circular causality method) were used. The multivariance of achieving common standards for assessing the range of permissible restrictions on the freedom to conduct a business is determined by analyzing the balanced influence of internal and external factors, the interaction of many dichotomies and adichotomies.Results, scope of application. The provisions of the Convention define the range of rights and freedoms protected. However, the Court in its practice broadly interprets the list of rights and freedoms protected by the Convention. The Court considers the Convention as a "living instrument" in order to adapt it to changing conditions of public life. The Court’s current practice does not imply that the Court has exceeded its powers. The court implements the idea of circular causality of legal phenomena, perceived including in European space. European tradition recognizes the possibility of changing the legal space in different ways. The main way of transforming the legal system is to change quantitative parameters. It is possible to accumulate the qualities of practical implementation of the principles enshrined in the Convention by ensuring the realization of human rights and fundamental freedoms. Investigators of the Court's practice mainly analyse the characteristics of the protection of human rights and freedoms explicitly mentioned in the Convention. The complexity of the study of the Court's practice for the protection of unrecognized human rights and freedoms stems from its heterogeneity. However, an analysis of the practice of protecting such rights and freedoms reveals the internal mechanisms of the Court to ensure the equilibrium of legal space. The article defines the basic position of the Court on the question of determining the degree of proportionate balance between public and private interests in establishing restrictions on the rights and freedoms of a person and a citizen not expressly enshrined in the Convention. The realization of economic rights and freedoms requires the greatest flexibility of the mechanism for the protection of rights and freedoms. Intensive economic development requires a rapid change in the legal space. The interpretation of human rights and freedoms has an impact on the level of protection of the economic rights and freedoms. The text of the Convention has been modified without adopting its new edition.Conclusions. Law enforcers are particularly interested in analyzing the Court's practice in cases related indirectly to the protection of freedom to conduct a business. The Court determines the main vectors of interpretation of the freedom to conduct a business. Law enforcers can use the Court's approach in interpreting the provisions of the Convention without risking being accused of human rights and freedoms violations. The generalizations make it possible to establish the ideological and substantive component of the basic axiological imperative of the Court in the protection of the economic rights and freedoms through the protection of the right to property. It was concluded that the Court's decisions justified the need to protect the freedom to conduct a business by its inherent connection with the right to property, as well as the universality of the criteria for determining the legality of restricting the rights and freedoms.
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Marchenko, Svitlana, and Volodymyr Paliychuk. "Autonomous interpretation of the concept of “property” in the practice of the ECtHR in the context of land and agrarian law of Ukraine." Law Review of Kyiv University of Law, no. 1 (May 5, 2021): 253–57. http://dx.doi.org/10.36695/2219-5521.1.2021.49.
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Convention for the Protection of Human Rights and Fundamental Freedoms. Particular attention is paid to the autonomous interpretationby the European Court of Human Rights of the concept of property within the meaning of the abovementioned Convention.The European Court of Human Rights interprets the concept of “property” quite broadly, including not only traditional objects of thematerial world, but also a number of intangible assets. In addition to classic tangible assets (such as land), the European Court of HumanRights also includes a “legitimate expectation” to receive certain assets to the content of the concept of “property”. It is extremelyimportant in Ukrainian land law when a person may not be de facto the owner of the land plot due to bureaucratic abuses of the subjectsof power. At the same time, this position of the Strasbourg Court gives potential owners or land users an additional degree of protectionof their rights.The legal positions of the European Court of Human Rights according to which licenses or special permits that “constitute economicvalue” may also be recognized as property and be protected in accordance with Art. 1 of the First Protocol to the Convention arealso significant. This approach to the interpretation of the concept of “property” is particularly important for the subjects of agrarian law,given that the national agrarian legislation provides for many permits, licenses and other permitting documents for economic entities.Based on the analysis of national legislation and the case law of the European Court of Human Rights, it is concluded that thecase law of the European Court of Human Rights is a source of agrarian and land law, which provides new opportunities to argue legalpositions in jurisdictional protection of property rights. The necessity of implementation in the national law enforcement and law-ma -king activity of the practice of the European Court of Human Rights in the context of protection of the rights of participants of land andagrarian legal relations to their property is substantiated.Based on the analysis of national legislation and the case law of the European Court of Human Rights, it is concluded that thecase law of the European Court of Human Rights is a source of agrarian and land law, which provides new opportunities to argue legalpositions in jurisdictional protection of property rights. The necessity of introduction in the national law enforcement and law-makingactivity of the practice of the European Court of Human Rights in the context of protection of the rights of participants of land andagrarian legal relations to their property is substantiated.
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Gill-Pedro, Eduardo. "Proportionality and the Human Rights of Companies Under the ECHR – Whose Interests are at Stake?" Nordic Journal of International Law 89, no. 3-4 (November 12, 2020): 327–42. http://dx.doi.org/10.1163/15718107-89030004.
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Abstract This article considers whose interests may be at stake when a company claims its human rights under the European Convention on Human Rights (echr). In order to do that, the article will first investigate whether it makes sense to conceive of companies as persons capable of having their own interests. It finds that it is possible to do so. The article proceeds to analyse the case law of the European Court of Human Rights (ECtHR) in respect of claims regarding their companies’ right to property, free expression and respect for home, considering whether, when the Court assesses the proportionality of the alleged interference, it is the interests of the company claiming the rights that are at stake. The article concludes it is possible to understand the case law of the court as not necessarily placing the interests of the company in the balance when assessing the proportionality of interferences with the Convention rights of companies. The article suggests that such an understanding is normatively desirable if we consider human rights as instruments for the protection of human beings.
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Gashi, Ardrit. "The constitutional protection of property: The case of Kosovo." SEER 22, no. 1 (2019): 53–66. http://dx.doi.org/10.5771/1435-2869-2019-1-53.
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One of the main constitutional legal protections in Kosovo is that applying to property. The Constitution guarantees this and it can therefore be realised at the Constitutional Court. Problems regarding the protection of property have, for many reasons, been a continuous feature of Kosovan institutions and society, notably after 1999. Therefore, this topic, both in the light of the constitutional provisions and in interaction with the standards and interpretations of the European Court of Human Rights, constitutes a highly important one for analysis. This article presents aspects of the requirements for filing complaints over the protection of property, emphasising the position of the European Convention on Human Rights in the Kosovo legal system and the application of Protocol 1 of the Convention. The paper refers mainly to Kosovo, but the academic discourse it generates has general applicability. The Constitutional Court, based on Article 53 of the Constitution, obliges all public authorities to implement the best practice of the European Court in adjudicating the Constitutional guarantees on fundamental rights and freedoms.
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Mestre, Jacques. "L’influence de la Convention européenne des droits de I’homme sur le droit français des obligations." European Review of Private Law 2, Issue 1 (March 1, 1994): 31–45. http://dx.doi.org/10.54648/erpl1994002.
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Abstract. Conceived of, in essence, as means of ensuring the protection of the fundamental rights of the individual, the European Human Rights Convention and its additional protocols appear at first sight to have little in common with the law of contract and of tort. However, there are a number of conceivable points of contact, which are visible in particular in the context of the right to the protection of property, the right to privacy and the rights to freedom of expression and freedom of association, or even in the context of the right to due process. Already a number of decisions have been handed down both by the European Court of Human Rights and the French courts which illustrate the potential influence of European Law on the internal law of obligations. This article thus briefly sets out these points, before presenting by way of conclusion an attempted synthesis and a reflection upon possible future conjunctions between national law and these European principles. Zusammenfassung. Die europäische Menschenrechtsconvention, die im wesentlichen zur Verteidigung der fundamentalen personalen Freiheiten erlassen wurde, und seine ergänzenden Protokolle erscheinen auf den ersten Blick ‘fremd’ im Hinblick auf das Vertragsrecht und das Recht der zivilrechtlichen Verantwortlichkeit. Dennoch sind mehrere Berühungspunkte unmittelbar einleuchtend: so z.B, in Bezug auf das Eigentums(Vermögens)recht, den Schutz des Privatlebens und das Recht auf freie Entfaltung der Persönlichkeit und auf Vereinigung oder auch auf das das Recht auf eines gerechten Verfahren. Mehrere Entscheidungen des Europäischen Gerichtshofes ebenso wie die Französische Rechtsprechung haben bereits den möglichen Einfluß der europäischen Normen auf das interne Recht der Obligationen erläutert. Dieser Beitrag beschäftigt sich folglich mit diesen Entwicklungen und zeigt analysierend einige Beobachtungen dieser Zusammenhänge auf. Zudem widmet er sich mit einigen möglichen Entwicklungen in der Zukunft.
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Nariman Seyidov, Javanshir. "Avropa İnsan Hüquqları Məhkəməsinin yaradılması və inkişaf prosesi." SCIENTIFIC WORK 77, no. 4 (April 17, 2022): 132–36. http://dx.doi.org/10.36719/2663-4619/77/132-136.
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The European Convention on Human Rights, drafted by the Council of Europe after World War II, was signed on 4 November 1950 and entered into force on 3 September 1953. The agreement was later amended and updated through protocols. In addition, they have the property of being prioritized in accordance with the law. According to this provision of the Constitution, the Convention has a very important place in our law. In addition to basic rights and freedoms, the European Convention on Human Rights also regulates the establishment and functions of the European Court of Human Rights and the judicial process. Individuals or Contracting States may, in accordance with the procedures provided for in the Convention, apply to the Court and seek the protection of their rights or the performance of the obligations of other Contracting States. These rules relating to the establishment and operation of the Court must be considered and followed in order for the judicial mechanism provided for in the Convention to function and for the protection of fundamental rights and freedoms in the international arena. Therefore, in addition to the provisions on fundamental rights in the Convention, it is extremely important to examine the provisions on how and through what procedures these rights will be protected. Key words: European Convention on Human Rights, European Court of Human Rights, Position, Eligibility Cavanşir Nəriman oğlu Seyidov Avropa İnsan Hüquqları Məhkəməsinin yaradılması və inkişaf prosesi Xülasə İkinci Dünya Müharibəsindən sonra Avropa Şurası tərəfindən hazırlanmış İnsan Hüquqları üzrə Avropa Konvensiyası 4 noyabr 1950-ci ildə imzalanmış və 3 sentyabr 1953-cü ildə qüvvəyə minmişdir. Müqaviləyə sonradan protokollar vasitəsilə düzəlişlər edilib və yenilənmişdir. Bundan əlavə, qanunlara uyğun olaraq prioritet tətbiq olunma xüsusiyyətinə malikdirlər. Konstitusiyanın bu müddəasına görə Konvensiya qanunumuzda çox mühüm yer tutur. Avropa İnsan Hüquqları Konvensiyasında əsas hüquq və azadlıqlarla yanaşı, Avropa İnsan Hüquqları Məhkəməsinin yaradılması və vəzifələri, məhkəmə araşdırması proseduru ilə bağlı da tənzimləmələr var. Fiziki şəxslər və ya Razılığa gələn dövlətlər Konvensiyada nəzərdə tutulmuş prosedurlara uyğun olaraq Məhkəməyə müraciət edə və öz hüquqlarının müdafiəsini və ya razılığa gələn digər dövlətlərin öhdəliklərinin yerinə yetirilməsini tələb edə bilərlər. Konvensiyada nəzərdə tutulan məhkəmə mexanizminin fəaliyyət göstərməsi və əsas hüquq və azadlıqların beynəlxalq aləmdə qorunması üçün Məhkəmənin yaradılması və fəaliyyəti ilə bağlı bu qaydalar nəzərə alınmalı və onlara əməl edilməlidir. Bu səbəbdən, Konvensiyadakı əsas hüquqlara dair müddəalarla yanaşı, bu hüquqların necə və hansı prosedurlarla qorunacağına dair müddəaların araşdırılması son dərəcə vacibdir. Açar sözlər: İnsan Hüquqları üzrə Avropa Konvensiyası, Avropa İnsan Hüquqları Məhkəməsi, vəzifə, məqbul şərtlər
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Orebech, Peter Thomas. "From Diplomatic – to Human Rights Protection: The Possessions under the 1950 European Human Rights Convention, First Additional Protocol Article 1." Journal of World Trade 43, Issue 1 (February 1, 2009): 59–96. http://dx.doi.org/10.54648/trad2009002.
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‘Possession’ as defined in The European Convention of Human Rights (ECHR), the First Additional Protocol (FAP) Article 1 resulting from judicial legislation incorporates not only the physical control of assets, but as well rights and benefi ts constituting assets, intellectual property, patrimonial rights, the “right to credit”, “VAT [value added tax] refund”, right to social security benefits, licenses etc. in respect of which the applicant can argue that he has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment. Clearly, economic rights of different kinds are now part of the human rights arena. A prediction is that a great variety of assets, shares, obligations, futures, factoring, etc. will in the future gain from not only diplomatic protection, but also from direct personal applicability of human rights. The human rights protection according to ECHR, FAP Article 1 – the rights of which should be practical and effective – sets forth a complicated, intertwined, three–step determinative process: (1)The principle of peaceful use of one’s possession[s], which requires the injured party to demonstrate that his interest qualifies as a ‘possession.’(2) A legally valid expropriation and state interference or intervention that turns into a deprivation when it exceeds a minimum level of intensity. In concreto the deprivation must be “in the public interest” and must have taken place “subject to the conditions provided for by law,” and by the “general principles of international law.” Illegal takings do not require a showing of formal, i.e. de jure expropriation. It is sufficient that a de facto deprivation affects the party’s peaceful enjoyment of his or her possessions in a manner that is equal to expropriation. (3) The deprivation must be carried out in the cause of public interest. To be justifi ed or legally justifiable, a deprivation should strike a “fair balance” between the demands of the general interest of the community and the state’s duty to protect the individual’s fundamental rights. If the agencies fail to conduct such a deliberation, the plaintiff has a solid claim. Where the government does not deliberate the merits of the conflicting community and individual claims, it has demonstrably never initiated the balancing process in the first place, which in and of it self breaches plaintiff’s human rights.
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Mezentseva, O. O. "PROTECTION OF INTELLECTUAL PROPERTY RIGHTS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS." Juridical scientific and electronic journal, no. 2 (2020): 467–69. http://dx.doi.org/10.32782/2524-0374/2020-2/121.
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Sánchez-Rodas Navarro, Cristina. "La aplicación del primer protocolo adicional del Convenio Europeo de Derechos Humanos a las prestaciones sociales ¿freno para las reformas de seguridad social? = The application of the first additional protocol of the European Human Rights Convention to social benefits, brake for social security reforms?" CUADERNOS DE DERECHO TRANSNACIONAL 10, no. 2 (October 5, 2018): 676. http://dx.doi.org/10.20318/cdt.2018.4394.
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Resumen: Aunque el derecho a la Seguridad Social aparece regulado en numerosos Tratados internacionales, ni el Convenio Europeo de Derechos Humanos ni sus Protocolos Adicionales la contemplan. Y, sin embargo, son numerosas las sentencias del Tribunal Europeo de Derechos Humanos que tienen por objeto la tutela del derecho a percibir prestaciones sociales contributivas, no contributivas y de naturaleza mixta. El elemento en común que tienen esas sentencias –que se analizan en el primer bloque– es que el Tribunal parte de la premisa de que el derecho a prestaciones sociales es un derecho de propiedad tutelable al amparo del artículo primero del Primer Protocolo Adicional al Convenio Europeo de Derechos Humanos. En base a dicho precepto España ya ha sido condenada en dos ocasiones en materia de pensiones de Seguridad Social. Esta jurisprudencia podría convertirse, además, en un límite a la potestad legislativa de los Estados que, como España, introdujeron importantes recortes en materia de pensiones en los años más duros de la última crisis económica y financiera mundial.En el segundo bloque se estudia el impacto de dicha jurisprudencia del Tribunal Europeo de Derechos Humanos en el Tribunal de Justicia de la Unión Europea, del que la cuestión prejudicial Florescu es, hoy por hoy, la única exponente. Por último se analiza la jurisprudencia de nuestro Tribunal Constitucional que viene manteniendo el criterio que en materia de prestaciones sociales no existe un derecho de propiedad, sino una expectativa de derecho no indemnizable.Palabras clave: Derecho de propiedad, prestaciones contributivas, prestaciones no contributivas, Primer Protocolo Adicional al Convenio Europeo de Derechos Humanos.Abstract: Although the right to Social Security is regulated in numerous international Treaties, neither the European Convention on Human Rights nor its Additional Protocols contemplate it. Nevertheless, there are numerous judgments of the European Court of Human Rights that have for object the protection of the right to receive social contributory, non-contributory and of a mixed nature benefits. The common element in these judgments - which are analyzed in the first block - is that the Court starts from the premise that the right to social benefits is a property right that can be protected under the first article of the First Additional Protocol to the European Convention. of Human Rights. Based on this precept, Spain has already been sentenced twice in cases related to Social Security pensions. This jurisprudence could also become a limit to the legislative power of States that, like Spain, introduced important pension cuts in the harshest years of the last global economic and financial crisis.The second block examines the impact of this jurisprudence of the European Court of Human Rights in the Court of Justice of the European Union, of which the preliminary question Florescu is, at present, the only exponent. Finally, we analyze the jurisprudence of our Constitutional Court that has maintained the criterion that in the field of social benefits there is no property right, but an expectation of non-compensable right.Keywords: Property rights, contributory benefits, non-contributory benefits, First Additional Protocol to the European Convention on Human Rights.
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Ahlinder, Elisabeth. "Fair Compensation for Telecom Rights in Land in Sweden and the UK." European Property Law Journal 7, no. 1 (May 3, 2018): 32–62. http://dx.doi.org/10.1515/eplj-2018-0003.
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AbstractThis article explores how the ever-increasing demand for and rapid development of high-speed broadband have influenced the policy for compensation for compulsory grants of telecom rights in land in Sweden and the UK. The article assesses whether the compensation in Sweden and the UK is fair in relation to compensation for other necessary social infrastructures such as water and electricity, consideration for equivalent voluntary rights in land, general principles of expropriation law and the right to peaceful enjoyment of property according to Article 1 in the first Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
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Palmer, Ellie. "Beyond arbitrary interference: the right to a home? Developing socio-economic duties in the European Convention on Human Rights." Northern Ireland Legal Quarterly 61, no. 3 (March 11, 2020): 225–43. http://dx.doi.org/10.53386/nilq.v61i3.452.
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This paper is concerned with divergent trends in the protection of socio-economic rights by the European Court of Human Rights (ECtHR). It focuses on the potential to gain access to housing or housing-related benefits through the incremental development of positive obligations in the European Convention on Human Rights (ECHR). First, it argues that, despite the conceptual inadequacy of the positive–negative dichotomy of rights, its influence is still strongly reflected in the ECtHR’s jurisprudence. It demonstrates that, despite the potential to develop the positive aspects of Articles 3 and 8 ECHR to protect vulnerable homeless individuals in respect of their need for shelter, strategic successes of the past decade, such as Connors v UK and McCann v UK, reflect a bias towards claims involving negative interference with the enjoyment of an existing home. Second, the article considers the implications of a trend towards the harmonisation of socio-economic rights in member states, through use of the fair trial right in Article 6, or the right to equal treatment in Article 14, read with Article 1 of Protocol 1 ECHR. It argues that, despite the impression of progress in Tsfayo v UK and Stec v UK, ,the ECtHR has relied on an artificial extension of substantive rights to a fair trial or to property covered by the Convention, rather than on efforts to address issues of socio-economic disadvantage more holistically through the development of a principled jurisprudence of positive obligations in the ECHR.
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Andrusiv, L. "The concept of «possession» in the practice of the European court of human rights." Scientific and informational bulletin of Ivano-Frankivsk University of Law named after King Danylo Halytskyi, no. 13(25) (June 8, 2022): 141–50. http://dx.doi.org/10.33098/2078-6670.2022.13.25.141-150.
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Purpose. The purpose of the article is to reveal the concept of «property» and determine its characteristics in the case law of the European Court of Human Rights Methodology. The methodology includes a comprehensive analysis and generalization of the case law of the European Court of Human Rights, scientific positions and the formulation of the relevant features. The following methods of scientific cognition have been used during the research: dialectical, hermeneutic, method of analysis and synthesis, prognostic, systemic and formal-legal. Results. In the course of the research it has been stated that the interpretation of the concept of property in the Civil Code of Ukraine and the practice of the European Court of Human Rights are different. The cases against Ukraine in which a violation of Article 1 of Protocol No. 1 to the Convention was found have been considered and the facts constituting the violation have been singled out. It has been emphasized that, according to the case law of the European Court of Human Rights, arrears constitute property for the purposes of Article 1 of Protocol No. 1. The autonomy of the concepts of «property», «possession» is highlighted and a much broader approach to the concept of «possession» is used compared to the national legislation of Ukraine, as the European Court is not limited to property rights and is not bound by formal classifications. Practical significance. The results of the study can be used to improve the legal regulation and legal consolidation of the concept of «possession», as well as in the trial. Key words: European Court of Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, property, possession, protection of property rights, debt by the court decision
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Shabalin, Andrii. "Some aspects of judicial protection of civil legal relations in Estonia." Theory and Practice of Intellectual Property, no. 6 (February 27, 2023): 64–71. http://dx.doi.org/10.33731/62022.274648.
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Keywords: intellectual property law, codification, EU, civil procedure, civil law,CPC of Estonia
The scientific article examines the peculiarities of the civil proceduralorder for the protection of law in Estonia. Attention is paid to the genesis of modernEstonian civil justice, the peculiarities of some civil legal procedures for considerationand resolution of civil cases are established. It is concluded that all civillegal disputes are resolved according to the rules of civil proceedings, includingdisputes about the protection of intellectual property rights and the protection ofownership rights to immovable property. Instead, there are exceptions — these aredisputes related to European patents, which are resolved in accordance with theAgreement on the Unified European Patent Court. This approach is fully in linewith the pan-European digitalization strategy. Attention is also paid to the implementationof European legal standards in civil justice in Estonia. Thus, it is indicatedthat Estonian courts must follow the relevant practice of the European Courtof Human Rights when deciding civil cases. In Estonia, the Supreme Court canturn to the European Court of Human Rights for an advisory decision on the application,interpretation, and interpretation of the law guaranteed by the Conventionon the Protection of Human Rights and Fundamental Freedoms. Moreover, theparticipants in the legal process, in case of disagreement with the decision of theEstonian courts, including the Supreme Court of Estonia, have the right to appealto the European Court of Human Rights and the Court of Justice of the EU. It is stated that in the Estonian civil process there is a special procedure for the collectionof evidence in accordance with the requests of the EU member states to Estonia.Based on the research, theoretical conclusions and recommendations of relativelyeffective ways of updating (unification, codification) Ukrainian legislationwere formulated, in particular in the aspect of its adaptation to EU legislation.
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Krimmer, Maren. "Protection of Property Rights in Crimea: The Tools of International Investment Law compared to the Mechanism of the European Convention on Human Rights." Review of Central and East European Law 46, no. 1 (February 24, 2021): 131–46. http://dx.doi.org/10.1163/15730352-bja10044.
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Abstract The Crimean conflict has been a challenge to the international community not only politically since the role of international law has now been questioned, especially concerning its interpretation and even applicability. As Crimea now falls into the category of an annexed/occupied territory, it is worth examining whether effective protection is afforded to property rights relating to foreign direct investments (fdi s) on Crimean territory. Foreign Direct Investments are usually protected by bilateral investment treaties (bit s) and this paper examines whether the Russia-Ukraine bit can guarantee an effective protection for property and also what other tools may exist for guarantee this protection. The article shows that there are two different “toolkits” which can protect investors’ property rights. Thus, not only the Russia-Ukraine bit can guarantee effective protection of property protection but also another tool, which is the European Convention on Human Rights. Both tools, the Russia-Ukraine bit and the echr protect the property rights and can co-exist.
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Sadurski, Wojciech. "Allegro without Vivaldi: Trademark Protection, Freedom of Speech, and Constitutional Balancing." European Constitutional Law Review 8, no. 3 (October 2012): 456–92. http://dx.doi.org/10.1017/s1574019612000296.
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Allegro – Trademark protection – Freedom of speech vs. intellectual property – Polish Constitution – European Convention on Human Rights – Balancing of competing values – Constitutionally permissible limits on freedom of expression – Comparison with case-law of United States Supreme Court – ‘Categorical’ approach vs. ‘balancing’ approach
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Gromozdina, Maria V. "Access Rights as a Way to Communicate with a Child." Juridical Science and Practice 16, no. 1 (2020): 11–16. http://dx.doi.org/10.25205/2542-0410-2020-16-1-11-16.
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The article deals with issues related to the exercise of parental access rights as a way of communicating with the child. A parent who claims to exercise the right of access is a separately residing parent and, as a rule, a foreign citizen. The implementation of the right of access is related to the application of the Hague Convention on Civil Aspects of International Child Abduction, 1980. In this connection, the author investigates the problems of application of the right of access by the Russian courts in solving family disputes related to upbringing of children. The situation is analyzed as to the possibility of a broad interpretation of the concept of "access rights", taking into account established international practice. The problem of a misunderstanding of the essence of access rights and the related limited application of the Convention's provisions are identified. The author is of the view that the rights of access and the procedure for communication with the child (in case of separation of parents) are independent legal institutions and do not replace each other. Comparative legal analysis confirms the author's conclusions, which are justified by examples of court practice. The choice of the method of protection of parental rights is determined by the person applying for protection and cannot be changed by the court in violation of the plaintiff's rights. Thus, the conclusion is made that it is necessary to analyze the jurisprudence of the European Court of Human Rights in order to properly apply the Convention.
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Endresen, Clement. "Taxation and the European Convention for the Protection of Human Rights: Substantive Issues." Intertax 45, Issue 8/9 (August 1, 2017): 508–26. http://dx.doi.org/10.54648/taxi2017043.
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When the European Convention on Human Rights (ECHR) was agreed, clearly it did not apply to substantive tax issues. The author aims to show that there is nothing to suggest that the inclusion of the protection of property rights in paragraph 1 of the First Protocol to the Convention represented a change in this respect. In spite of this, there is in the literature considerable enthusiasm for the notion that the Convention is also important as regards this issue. The author examines the jurisprudence of the European Court of Human Rights (ECtHR) in cases which involve substantive tax issues, and argues that the Court, with the help of the concept of an extraordinary margin of appreciation, has indeed shown great reluctance towards getting involved in these issues. This approach is applauded, and it is argued that the old notion that taxation is a fundamental part of national sovereignty, is still valid, and that it justifies the restraint shown by the ECtHR. The question of legal security for taxpayers – to the extent that this principle is also relevant to substantive issues – must be balanced against the principle of effectivity. Thus, the solutions to legal security issues in this sphere of the law may well differ from the solutions to parallel questions in other legal contexts.
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Nguyen, Ho Bich Hang, and Katja Weckström Lindroos. "The Regulation of Farmer’s Privilege Under Vietnamese IP Law and the Law of the European Union." IIC - International Review of Intellectual Property and Competition Law 52, no. 6 (March 30, 2021): 677–705. http://dx.doi.org/10.1007/s40319-021-01043-z.
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AbstractThe International Union for the Protection of New Varieties of Plants Convention 1991 (UPOV Convention) recognizes the need to protect plant breeders’ legitimate interests. Without breeders’ innovations, new high-productivity plant varieties can neither be created nor contribute to society as a whole. Without these new varieties, it is impossible to create new high-yield generations of plants for the benefit of society. The absolute protection of breeders’ rights, however, would create many negative impacts for society. In particular, farmers would have to pay higher prices for seeds if breeders’ exclusive rights were to be overprotected, which would also mean consumers having to pay more for basic foodstuffs. This would lead to food insecurity nationally or even globally, in contravention of the right to food as recognized by Art. 25 of the United Nations Universal Declaration of Human Rights in 1948. These situations represent the dilemmas that governments have to cope with in developing national economies. The concept of farmer’s privilege is an exemption that the UPOV Convention recognizes in order to balance benefits between breeders and farmers. Under the optional exception set out in Art. 15(2) of the UPOV Convention, Contracting Parties may adopt the farmer’s privilege exemption in national law. Vietnam’s Law on Intellectual Property contains the farmer’s privilege exemption, yet there are many loopholes regarding this provision, and in reality, its application is limited. This article analyzes European Union regulation on farmer’s privilege and the way in which this exception has been interpreted, and compares and applies it to the Vietnamese law.
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Vizdoaga, Tatiana, and Adriana Esanu. "The right of the defense to request an explanation of the accusation during the criminal investigation phase." Journal of the National Institute of Justice, no. 4(59) (December 2021): 7–14. http://dx.doi.org/10.52277/1857-2405.2021.4(59).01.
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Pursuant to Article 66 paragraph (2) point 1) of the Code of Criminal Procedure, the accused has the right to know for what deed he is accused […], i.e. to be informed on the nature and cause of the accusation brought against him. If the person is not properly informed about the accusation, he is deprived of the right to ensure the possibility of preparing and exercising his defense, being seriously affected by the principles of a fair trial, guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although the principle governing the exercise of rights by the accused in criminal proceedings guarantees the use of any means and procedures of defense, except those expressly prohibited by law, some prosecutors are reluctant to defenders’ requests to explain the accusation in criminal proceedings, context in which, in most cases, either declares them inadmissible or considers them unfounded. Such an approach does not reconcile the right to a fair trial; or, the clarity of what is set out in the indictment is also linked to the right of the accused to defend himself – as an indispensable element of the protection of the person against arbitrariness. Therefore, in this study, the authors will come up with pertinent arguments to annihilate the vicious practice of prosecutors to disregard the importance of predictability of the accusation in order to ensure the right to defense, as well as avoiding the conviction of the Republic of Moldova by the European Court for European Convention.
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Kuzmenko, Serhii. "LEGAL BASIS FOR COMPENSATION BY THE STATE TO THE VICTIM FOR THE DAMAGE CAUSED BY A CRIMINAL ОFFENSE." Law Journal of Donbass 76, no. 3 (2021): 143–49. http://dx.doi.org/10.32366/2523-4269-2021-76-3-143-149.
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The article focuses on the mechanism of compensation to the victim for the damage caused by a criminal offense and the positive obligations of the state to guarantee to everyone under its jurisdiction the effective use of property rights and its restoration in case of violation. Attention is drawn to the long-term absence in the national legislation of Ukraine of a mechanism of compensation at the expense of the State Budget of Ukraine for damage caused to the victim as a result of a criminal offense. The article analyzes the impact of the conclusions made by the European Court of Human Rights on the jurisprudence of domestic courts of Ukraine with regard to the inadmissibility of the applicant's complaint set out in the Court's judgment in «Petliovannny vs. Ukraine». On the other hand, there have been included examples of application of the rule of law and recognition by courts of violations of the guarantees, enshrined in Part 1 of the First Protocol to the Convention, due to the long-term lack in the national legislation of the procedure of compensation provided from the State Budget of Ukraine for unlawful destruction of property. The article analyzes and compares the practice of the European Court of Human Rights and national courts regarding the interpretation of similar legal relations guaranteed by Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms of every natural or legal person’s right to peaceful enjoyment of their possessions. Attention is drawn to the need to create and apply a mechanism to provide the victim with compensation for the damage caused by a criminal offense. It is proposed to continue research in this area in comparison with other areas of application of Article 1 of the First Protocol in order to facilitate amendments to national legislation aimed at unconditional observance of human rights provided by Article 41 of the Constitution of Ukraine on inviolability of property rights.
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Boute, Anatole. "The protection of property rights under the European Convention on Human Rights and the promotion of low-carbon investments." Climate Law 1, no. 1 (2010): 93–132. http://dx.doi.org/10.1163/cl-2010-005.
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Daminova, Nasiya Ildarovna. "ECHR Preamble vs. the European Arrest Warrant: balancing Human Rights protection and the principle of mutual trust in EU Criminal Law?" Review of European and Comparative Law 49, no. 2 (May 30, 2022): 97–131. http://dx.doi.org/10.31743/recl.13109.
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As stated in the European Convention on Hu- man Rights Preamble, the aim of the Council of Europe is the achievement of greater unity between its members through the maintenance and realisation of Human Rights and Fundamental Freedoms . Nowadays, the European Union includes the majority of the ECHR signatories (27 of 47) and incorporates the key legal instrument of judicial cooperation in criminal matters, namely the European Arrest Warrant Framework Decision . Nevertheless, the possible effects of the EAWFD on the practice of the European Court of Human Rights remain understudied – despite the crucial need to properly balance the enforcement of the principle of mutual recognition and Human Rights protection in the European Union. Since the first attempts to approach the EAWFD, the Strasbourg Court preferred to find the applications inadmissible (Pianese, Monedero Angora, Stapleton) or to establish a very high threshold for establishing a Convention violation within this context (Pirozzi). It will be argued that the newly developing Strasbourg Court’s case-law on the EAWFD (Castano, Bivolaru/Moldovan, Alosa) could potentially mark a new step in the judicial dialogue be- tween two European Courts. In the Castano and Bivolaru/ Moldovan rulings, the ECtHR – for the first time – found that the EU Member States had breached their obligations under Arts . 2 ( ́right to life ́) and 3 ( ́prohibition of torture ́) ECHR within the European Arrest Warrant context (murder/traffick- ing in human beings charges). At the same time, this interpre- tation opens the floor for discussion on potential applicability of other Convention provisions (Arts . 4, 5, 8, 13) to other offences listed in Art . 2(2) of the EAWFD (such as, for instance, corruption, fraud, computer-related crime etc .). Even though the Strasbourg Court has transposed the CJEU’s benchmarks of the EAW refusals legality assessment – i .e . a risk of inhuman or degrading treatment in the requesting State (Aranyosi/Căldăra ru), the EU Member States ́ courts are now forced – de facto – to consider an additional (ECHR-based) criterion for assessing the legality of refusals to execute the European Arrest Warrants. This can arguably pose further questions upon the entry into force of Protocol No. 15 ECHR which aims at the most effective realisation of the ́subsidiarity ́ principle in the European Convention system.
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Bohinich, O. "Positive obligations of the state in the field of law-making and law enforcement in the conditions of war and post-war reconstruction of the state." ACTUAL PROBLEMS OF THE LEGAL DEVELOPMENT IN THE CONDITIONS OF WAR AND THE POST-WAR RECONSTRUCTION OF THE STATE, no. 13 (October 1, 2022): 188–93. http://dx.doi.org/10.33663/2524-017x-2022-13-30.
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The article examines the issue of the state’s positive obligations regarding the observance, provision and protection of the rights of citizens in the extraordinary conditions of military operations and post-war reconstruction of the country. It is noted that the issue of the state’s positive obligations is closely related to human rights, the realization of which it must ensure and which it must protect. In the context of the above, a retrospective investigation is conducted regarding the emergence of such a phenomenon of legal validity as positive obligations of the state. It is argued that this phenomenon is a product of the emergence of the contractual theory of the state and natural law. Its modern development is mostly connected with the decisions of the European Court of Human Rights. The issue of the state’s positive obligations is considered in the context of military operations taking place on the territory of Ukraine. For this, the tools of civil law are used, namely: the law of obligation. n this regard, it is noted that the state is an obligated party to a person, therefore his right to life implies a corresponding obligation of the state to ensure the realization of this right, both in the sphere of rule-making and in the sphere of law enforcement. The relevant activity of competent state bodies in the pre-war period is analyzed. Corresponding shortcomings are indicated. At the same time, the activity of state bodies during military operations is characterized as positive. However, certain shortcomings of the relevant legal regulation of criminal protection of human rights to life, safety and property are pointed out. At the end, it is concluded that in today’s conditions, despite Ukraine’s withdrawal from certain obligations defined by the International Covenant on Civil and Political Rights and the Convention on the Protection of Human Rights and Fundamental Freedoms, it remains responsible for the preservation of life, health and property its citizens, ensuring their safety. In this aspect, the relevant activity of the competent state bodies of Ukraine needs to be intensified. Key words: рositive obligations of the state, law-making, law enforcement
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Ghandhi, S. "Protection of Property Rights Within the European Convention on Human Rights. By AR Coban. Aldershot: Ashgate, 2004. 274 pp 55." British Yearbook of International Law 76, no. 1 (January 1, 2006): 536–37. http://dx.doi.org/10.1093/bybil/76.1.536.
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Khrystynchenko, Nadiya. "The role of the European Court of Human Rights in ensuring appropriate and effective protection of a fair court in Ukraine." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 4, no. 4 (December 29, 2020): 82–88. http://dx.doi.org/10.31733/2078-3566-2020-4-82-88.
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The article deals with the study of the practice of the European Court of human rights on liability and control over non-enforcement of court decisions in Ukraine. The study notes the importance of the issue of enforcement of court decisions that have entered into legal force. In particular, it is indicated that such an act falls under the qualification of Article 6 of the convention for the protection of human rights and fundamental freedoms – a violation of the right to a fair trial. The European Court of human rights has repeatedly noted in its decisions the seriousness and scale of this threat to Ukraine. It has been noted that the percentage of enforcement of court decisions has never exceeded 40-45%, and in some years, it has decreased to critical values of 5-10%. The purpose of the article is to analyze the practice of the ECHR on liability and control over non-enforcement of court decisions in Ukraine and provide recommendations for improving this situation. It has been concluded that in Ukraine there is a problem of a persistent recurring nature – excessive length of enforcement or non-enforcement of court decisions, which is a violation of the rights guaranteed by the ECHR to a fair trial and to respect for property. Despite the fact that the ECHR has repeatedly pointed out the execution of a court decision as part of a trial, this position of the ECHR is still not always properly taken into account in Ukraine. Enforcement of a court decision is part of states ' obligations to ensure access to justice under Article 6 of the convention for the protection of human rights and fundamental freedoms. A person who has a court decision against a state or local government body is not required to initiate additional procedures to implement this decision. Unconditional implementation of such a decision should be guaranteed by the state. In order to improve the situation in the area under study, it is advisable to review the current legis-lation that ensures the implementation of court decisions, and continue reforming the civil service. Ap-propriate actions should be carried out in cooperation between the Cabinet of Ministers of Ukraine, the Verkhovna Rada of Ukraine and other responsible executive authorities. It seems appropriate to create a government commission to improve the work of the state executive service.