|
|
|
|
| The law |
Refer to a lawyer |
Refer to an accountant |
| |
|
| |
1. The principles of Article 1 of the First Protocol |
|
|
The full text of Article 1 of the First Protocol is set out in OG 71 A2. This Convention right provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. |
| |
Article 1 of Protocol 1 is made up of three rules concerning: |
| |
- the principle of the peaceful enjoyment of possessions;
|
| |
- the deprivation of possessions;
|
| |
- the right of the State to control the use of property in the general interest or to secure the payment of taxes or other contributions or penalties.
|
| |
The UK courts will be able to decide whether interference with property rights is justified in the public interest. The Strasbourg Court acknowledges that, in the context of this Convention right, each State is in a better position to assess the economic needs of its own society and should therefore be allowed some discretion in determining when interference with this right is in the public interest. |
| |
Even so, any measure or law that interferes with property rights (for example, a compulsory purchase order) must strike a fair balance between the demands of the community or society and the need to protect the individual’s fundamental rights. In considering this balance, one of the things the court will look for is compensation. So that, for example in the case of compulsory purchase, interference can be justified if the loss of rights to property are compensated by the payment of the economic cost of that property. |
| |
An interference with property must also satisfy the requirements of legal certainty. In other words, there must be a law which permits the interference and that law must be sufficiently certain and accessible. There must also be procedural safeguards against arbitrary State decisions. The procedural requirements of Article 6 – right to a fair trial, may be relevant here. (See OG 71 C1). |
 
| |
2. Definition of property or possessions |
| |
- "Property" or "possessions" in this context has a wide meaning and covers anything of economic value.
|
| |
It includes physical and non-physical property such as: |
| |
|
| |
|
| |
|
| |
|
| |
|
| |
-
- rights under contracts (including leases);
|
| |
- rights to run a business or economic interest connected to the running of a business;
|
| |
- rights to exercise a profession;
|
| |
|
| |
- a benefit resulting from a restrictive covenant;
|
| |
- an entitlement to an annual rent;
|
| |
- damages or other sums awarded by a court or tribunal.
|
| |
Although property has a wide meaning it covers only existing possessions and existing legal rights. For example, it covers the right to receive benefits under a pension scheme but not the right to inherit property at some point in the future. It would not cover the refusal to grant a licence but it might cover revocation or refusal to renew a licence. Article 1 of the First Protocol covers property not just owned by individuals but also owned by a company or other private body, such as a charity or trade union. |
| |
- In order to claim an interference with property rights, the claimant must be able to establish the nature of his property right and his entitlement to enjoy it under national law.
|
| |
3. Interference with Property Rights |
| |
Everyone has the right to use, develop, sell, destroy or deal with his or her property in any way they please. The right to protection of property means that public authorities cannot interfere with the way that property is used unless there is a law that lets them do it and unless it is justified. This means that no one can be deprived of his or her property except where the action is permitted by law and justifiable in the public or general interest. |
| |
It is also necessary to ensure that a person has the same rights to property as other people in the same situation. For example, a man caring for his disabled wife should get the same exemption from paying tax as a woman caring for her disabled husband. In this situation, a person’s rights under Article 1 of the First Protocol together with rights under Article 14 – prohibition of discrimination, are important. |
| |
4. How does Article 1 of the First Protocol affect the Commission? |
| |
We need to consider the effect of Article 1 of the First Protocol when taking any decisions relating to an individual’s or organisation’s property. This might have implications, for example, when we are: |
| |
- applying cy-près principles to transfer property from one charity to another;
|
| |
|
| |
- refusing to register an organisation as a charity or removing a charity from the register (where a registered number provides recognition of the charitable status of an organisation which in turn allows that organisation access to the fiscal advantages of being a charity);
|
| |
- changing a charity name (where the name is the property).
|
|