THE EUROPEAN COURT OF HUMAN RIGHTS AND THE RESTORATION OF PROPERTY RIGHTS AFTER THE FALL OF TOTALITARIAN REGIMES

One ought to bear in mind that the European Convention on Human Rights was introduced as a reaction to the atrocities committed during the Second World War. To guard, so to speak, against the rise of new dictatorships and prevent further human rights abuses in Europe.

The resolution of property claims is one of the most complex and important challenges a post-totalitarian government can face. It is very complex, because of the infinite domestic and international rules affecting individual rights and the prevailing absence of documentary evidence to support the victims claims.

Resolution is obviously important to the many individuals who were deprived of their homes and of the material and symbolic security associated with their homes. The process of restoring property rights and compensating losses of property is also of great significance to the international community at large.

The restoration of property rights is a crucial part of reversing the destructive effects of totalitarian regimes as well as the impact of the latter on society and individuals. In fragile post-conflict societies, the protection of property rights constitutes a primary condition precedent to the long-term social and economic stability of the region.

Therefore, one would assume that the European Convention on Human Rights would play an important role in the resolution of such conflicts.

However, it is certifiable that the Convention, especially the European Court of Human Rights, is unfortunately inapt to resolve such property claims, c.f. ECHR decision von Maltzan and others (No. 7191/01). This unsatisfactory situation is mainly attributable to two factors: i.e. due to admissibility provisions and a doubtful legal concept which the European Court’s case-law meanwhile has developed (rights in rem – instantaneous act).

It is generally known that the European Convention confers positive rights upon individuals and if a State violates any of these rights, the individual is able to bring an action against the State in the European Court of Human Rights.

Cases brought before the European Court however, must comply with the grounds of admissibility. Art 53(3) requires the Court to declare inadmissible any application which it considers incompatible with the provisions of the Convention or the protocols. The Concept of incompatibility with the conventions has four aspects to it: ratione loci, ratione materiae, ratione temporis, ratione personae.

Most property restitution claims are declared inadmissible on the grounds of ratione temporis; complaints against a state which had not ratified the Convention or accepted the right of individual petition at the relevant date will be declared inadmissible.

However, where events complained of started before the entry into force of the Convention and continued afterwards, the latter part can be subject of a complaints, although the Court may also take facts into account which have occurred before the entry into force of the Conventions, ECHR decisions Krenz v Germany; Loizidou v Turkey; Agrotexim v Greece; Malama v Greece.

The International community acknowledges that when property has been taken by a state without compensation it is illegal and remains illegal as long as it is not in conformity with the international obligations, cf. UN A/CN4.L602, Responsibility of States for internationally wrongful acts.

Conversely, the European Court of Human Rights maintains that the deprivation of ownership is in principle an ‘instantaneous act’ and does not produce a continuing situation of ‘deprivation of right’. The latter seems somewhat legally doubtful, for it is unprecedented that one moment an act can be illegal and in next moment without taking any further legal action all illegal effects of the property seizures can suddenly cease.

What is more there is no known legal principle that the holder of existing rights who has had no effective judicial remedy at his disposition should lose his title just because he has been unable to exercise his ownership rights over his property due to state prevention (reference is made to the Courts’ own case law Loizidou v Turkey No. 19918/92 para.41 and Brumarescu v Romania application no. 28342/95 para 71 seq.).

Through this implausible stance the European Court perpetuates totalitarian violations, creates a climate of impunity and unjustly enriches post-totalitarian governments at the expense of the victims. Thus the Convention totally fails to fulfil the goals it set out to accomplish.

Alexandra Mareschi

2006