Transforming Strasbourg’s A1P1 right to property?
20 July 2013
“Transforming the right to property” is the title of an interesting and controversial recent post (17 July 2013) on the Strasbourg Observers blog by Laurens Lavrysen. He declares his position up front:
“Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons.”
These reasons can be summarised as (i) the right assumes the current distribution of wealth, and thus protects that status quo; (ii) the right can amount itself to a violation of other human rights – slavery being the most egregious example, though Lavrysen asserts more controversially the fact that intellectual property rights may restrict access to medicines affecting the right to health (iii) the right does not distinguish between the types of property its protects
thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht.
His prescription (taking a clue from a recent Strasbourg Hungarian excessive taxation case – see N.K.M linked to my post here) is that A1P1 protection should be confined to cases where it is instrumental for the protection of the enjoyment of other rights, whether the right to protection against loss of employment (in N.K.M), the right to housing, the right to an adequate standard of living or the right to social benefits. But, he states:
What obviously shouldn’t be protected by human rights law are the wealth and luxuries of the Rockefellers of these worlds. These persons are wealthy and powerful enough to protect their interests through the political process anyway, without needing additional empowerment through human rights law.
In my view, this is completely wrong place to start. Equality before the law and due process should be afforded to everyone, Rockefellers or the poor alike. As the Supreme Court put it in the recent A1P1 case of Salvesen, (linked to my post) put it
As a minority group landlords, however unpopular, are as much entitled to the protection of Convention rights as anyone else….In the present context this means that the rights and freedoms that it guarantees are not just for tenants although their interests are important. They are for landlords too.
And so it should be. For how one starts deciding where to draw the line in Lavrysen’s instrumental definition of a property right is unstated – we are told that the yacht should not be worthy of protection but what about the fisherman’s rowing boat or bicycle? We should not let moral disapproval of excess wealth distort the meaning of property. The real debate in most A1P1 cases is and should be about lawful justification of any interference with property. High income taxation can easily be justified if its effect is not discriminatory. So can capital taxes, whether on real property (nothing in principle HR-breaching about a mansion tax) or personal property (think the French wealth tax). So can leasehold enfranchisement or measures taken to secure highway safety – to take the Supreme Court’s most recent foray into A1P1 (see my post). And this is how it ought to be. There is nothing wrong in making the state justify the legality and proportionality of its measures, whoever they may be addressed at, whether in or out of parliament.
It is also worth looking at Lavrysen’s example of intellectual property rights impairing the right to health via access to medicine. Here the balance between encouraging investment and innovation via intellectual property rights and the interests of the public in affordable medicines has sensibly to be set by parliament, not by some a priori decision that intellectual property rights should not be protected by the law.
Lavrysen’s idea that an A1P1 case should be furthered by linking it with other rights is an important and interesting one. I agree it should play a part but not at the first stage of “is there an A1P1 interest at all”, but at the justification stage – so something to be looked at when weighing up the nature of the infringement against the reasons advanced in favour of the measure at issue. His suggested scheme also has to engage with due process rights under Article 6(1). A civil right for Article 6(1) purposes can and will often include a right to property (which per Lavrysen will include some protected by A1P1 and some not). So some civil rights to property will be protected for fair trial purposes under Article 6(1) but will not get any A1P1 protection – which seems a bit odd.
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Come off it, does anybody seriously suggest that the right to property in slaves comes within A1P1?
The fact is that a society in which property can be confiscated by the State, other than for serious social purposes and on payment of fair compensation (and there is scope for argument about the meaning of both those expressions) is not a free society in which human rights are respected, and A1P1 reflects that.
Presumably, given the wide interpretation of this Protocol, the prospect of the enduring occupancy of an almshouse as an ‘object of charity’ would – absent incapacitance or manifest delinquency – be a defensible right.