Protection of property

What is the protection of property?

Property, in simple terms, is an object(s) that belong to someone. 

The protection of property is a rule ensuring that every person has the right to possess property and shall not be deprived of it. 

note Under this rule, property is not limited only to physical goods: it also includes, for example, company shares, intellectual property (such as trademarks) and social security benefits. Even a person’s professional practice (e.g. medical or legal) may qualify as a ‘possession’ in some cases.

Can deprivation of property be justified?

Yes, this right is not absolute. A person may be deprived of their property in the public interest and in accordance with the law.  

Legitimate public interests include:

  • securing greater social justice in the sphere of people’s homes
  • adoption of land and city development plans
  • preventing mass homelessness
  • measures to combat drug trafficking and smuggling
  • prevention of tax evasion

This is not a closed list: whether the public interest is legitimate is determined on a case-by-case basis. 

Even if the deprivation of property is done in the public interest, it must also be proportionate – this means that the measure should correspond to the aim, and not exceed what is required to attain it. In such cases, the State normally has an obligation to pay compensation to the affected owner. The precise amount of compensation is determined on a case-by-case basis –that would not always be the full market value of the property. 

example In the case of Tre Traktörer Aktiebolag v. Sweden, the authorities withdrew the licence to serve beer, wine and miscellaneous alcoholic beverages from the applicant (a company managing a restaurant) because of economic mismanagement and deficient book-keeping. The Court found no violation of property rights because the measures pursued a general interest in restricting the consumption and abuse of alcohol. 

Who protects this right?

As the State is the main guarantor of human rights, it must ensure that the protection of property is observed. 

The State’s obligations are twofold: negative (obligations “not to do” something) and positive (obligations “to do” something).
 
The negative obligation requires the State not to unlawfully interfere with this right. 

The positive obligations include establishing legal mechanisms that enable respect for property rights and adequate remedies in case of violations. 

International recognition of this right

The right to own property is closely linked to personal freedom. During wars, victims are not only deprived of their lives, but – primarily – of their possessions. The respect for human rights thus also enshrines respect for what the human owns. 

The first catalogue of human rights – the 1948 Universal Declaration of Human Rights – states in Article 17: 

1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

This right is found also in Protocol 1 to the European Convention on Human Rights and the European Union Charter on Fundamental Rights, as well as other international conventions. 

note This right is not expressly recognised in the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.

In context

Sources

Last updated 21/03/2024