National University of Political Studies and Public Administration [627830]

National University of Political Studies and Public Administration
The Department of International Relations and European Integration
Master Programme: Security and Diplomacy
Dissertation

NATIONAL AND INTERNATIONAL REGULATIONS OF THE RIGHT TO
PROPERTY

Scientific Coordinator
Lect.univ. dr. Gabriel Micu

Master Student: [anonimizat]
2017

Contents
I. Introduction ………………………………………………………………………………………………….. 2
I.1. A historical perspective on the right to property ……………………………………………… 3
II. The legal content of the right to property ………………………………………………………….. 7
II.1. Object ……………………………………………………………………………………………………….. 7
II.2. Holder of the right to property ……………………………………………………………………. 11
II.3. Content of the right to property ………………………………………………………………….. 13
III. The legal framework for the right to property ………………………………………………. 14
III.1. International Law ……………………………………………………………………………………. 14
III.2. Regional regulations ………………………………………………………………………………… 17
III.2.1 The right to property according to Article 1 Protocol 1 from the European
convention on Human Rights ………………………………………………………………………… 18
III.2.1.1 Analysis of the conditions ……………………………………………………………… 18
III.2.1.1.1 Lawfulness ……………………………………………………………………………. 19
III.2.1.1.2. Legitimacy ……………………………………………………………………………. 20
III.2.1.1.3. Proportionality ………………………………………………………………………. 22
III.2.1.2. The general principle of law and the compensatory measures in case of
deprivation/ control of property ………………………………………………………………….. 25
IV. States obligations correlative to the right of property …………………………………….. 31
V. Case study : Romania …………………………………………………………………………………… 36
V.1. The notion of ownership and property rights in Romanian law ……………………… 36
V.2. Regulations. The two types of property encountered in the Romanian system … 36
V.2.1. Public property …………………………………………………………………………………… 39
V.2.1.1. Subjects, object, content ………………………………………………………………… 39
V.2.1.2. Expropriation and Restitution Laws ……………………………………………….. 40
V.2.2. Private property …………………………………………………………………………………. 45
V.2.2.1. Characters of the right to private property. ………………………………………. 46
V.2.2.1.1. Absoluteness ………………………………………………………………………….. 46
V.2.2.1.2. Exclusiveness. ……………………………………………………………………….. 46
V.2.2.1.3. Perpetuality. …………………………………………………………………………… 47
V.2.2.2. Subject, Object, Content. ………………………………………………………………. 47

V.2.3. Defending the right to property in Romania. How to apply to the European
Court of Human Rights? ……………………………………………………………………………….. 48
V.3. Relevant cases for Romania ………………………………………………………………………. 57
VI. Conclusions. …………………………………………………………………………………………….. 63
BIBLIOGRAPHY ………………………………………………………………………………………………. 64

1
List of abbreviations

AfCHPR……………………………The African Charter on Human and Peoples’ Rights
ECHR……………………………… European convention on Human Rights
ECrtHR……………………………. European Court European Court of HumanRights
IACHR…………………………….. Inter -American Convention on Human Rights
ICCPR……………………………… Covenant on Civil and Political Rights
ICESCR……………………………. International Covenant of Economic, Social and
Cultural Rights
UDHR……………………………… The Universal Declaration of Human Rights

2
I. Introduction
The aim of the present paper is to provide a general overview on the right to property, as
well as to highlight some of its most important legal regulations, both in the national and
international law. By starting from a historical perspective of the right to property, analyzing
the present legal guarantees provided by the European, American and African legislation, it
will be brought to light the important role this right has in today ’s society, as well as the
legal means that might be used in case of abusive interferences with it.

An increased attention will be given to the European legal provisions, especially the legal
protection afforded by Protocol 1 of the European Convention on Human Rights and the
jurisprudence created by the European Court of Human Rights on this topic. The imperative
prerequisites that have to be encountered in order to benefit from the provisions of Article 1
Protocol 1 to the Convention will be evaluated, together with exposing the most relevant and
noteworthy violations of this article.

In the final part of the paper, the focus will be on examining the national property laws, the
legal regulations of the right, the types of property encountered in our country, as well as the
potential conflicts this right might generate. I will start from the restitution laws applicable
in Romania that developed a huge series of legal conflicts and afterwards move to the
situations that were brought to the attention of the European Court by Romanian applicants ,
so that in the end we cannot conclude something else besides the significant importance of
the right itself.

The choice of this theme comes amid a broad research on the legal essence of property law
and the importance of its regulation as a fundamental human right. Moreover, as a lawyer, I
had the opportunity to interfere with very interesting legal cases that had as the disputed
object the right to property. The trials in which I have participated as a conventional
representative have given me the opportunity to understand better the content of the property
right, along with the persons entitled to claim it, as well as the judicial means which
available for citizens to value their rights in relation to the properties they own.

3
In terms of sources of inspiration, as will be seen from the perspective of the last chapter of
this paper, I focused mainly on current legislative sources, collections of judicial practice,
and the doctrine regarding the substantive rights. The concrete case study will focus on
Romanian legislation, justified by the fact that I directly interact with it on the daily basis
and is of real interest to everyone from our country who owns a property.
I.1. A historical perspective on the right to property
The ideal social arrangements have been highly influenced by the idea of property, being “a
justification for representation in government, and for the separation of powers ”1.Some
authors affirm that2 the concept of property has its origins back in the late Middle Ages,
where heritage laws were recognized as being part of the society ’s guiding rules.
To establish an exact moment where the concept of property right appeared in history seem s
hard, but “to some extent, appropriation and property rights came about as the unavoidable
consequence of the exploitation by individuals of scarce resources ”3.
“However, it is considered to have evoluted from the age hunters, whereas each one ’s
property consisted in what they were hunting or fishing in their own interest, or for trading.
Economic historians generally identify the second stage in the evolution of human economy
as the stage of pasture and shepherds. During this period, people began asserting property
claims over animal herds and grazing lands. Property claims were still asserted by the tribe,
rather than by individuals within the ground. Such claims were initially asserted by means
of occupation, use, or accesision. In this phase, tribal property was non-transferable. ”4This
period was determinant because it marked the time whereas the right to ban others from
interefering with property was born.5

1Nedelsky, 1990, in Ann E Davis, The Evolution of Property relations , (Palgrave Macmillan, 2015), pp. 5
2 Ann E. Davis, The Evolution of Property relations , op.cit, pp.12
3Donatella Porrini, Giovanni Batista Ramello, Property Rights Dynamic s, A law and Economics
perspective (Routledge, 2007),pp. 3
4Ibidem, pp. 20
5 Smith, 1776/1986, in Donatella Porrini, Giovanni Batista Ramello, Property Rights Dynamic s, op.cit, pp
22

4
Moving to the era where agriculture and farming were the two main ways to earn a
livelihood, by quoting Pipes6 may be the best way to understand the role of ownership and
how it was treated back then: “ In all primitive societies and non- Western societies in
general, land was not treated as a commodity and hence was not truly property, which, by
definition, entails the right of disposal [ …] The transformation of land into tribal, family, or
individual ownership seems to occur, first and foremost, in consequence of population
pressures which call for a more rational method of exploitation, and it does so because the
unregulated exploitation of natural resources leads to their depletion ”.7

The recognition of property became more profound in the context of switching the main
activity of the tribe from hunting to exploiting the land, limited property rights of the tribal
land being distributed to the families. In this context, each one had the correlative obligation
to carry out specific activities, the transition from “the tribe to smaller family units ” gaining
contour. However, early societies focused more on the functional sense of property,rather
than on the spatial one, in which the property was driven by physical boundaries, thus giving
to the people certain rights over the land to unfold their activities.8From a historical
perspective of the evolution of property, we can affirm that the spatial conception of
property regained legitimacy, with absolute property regimes as the default rule in all
established agricultural societies9. In the feudal era, the ownership of land and the position
into the hierarchical pyramid defined each person ’s status in the society. Of course, the king
held the first position, every class from the pyramid having a well-defined role into the
structure of agriculture economy (which also had the role to support the milititary one).10
Switching to the modern perspective on the right to property, it is generally considered by
authors that the abolition of feudalism was a necessary precondition for the shift to a
modern market in land, in which individuals can transfer full ownership and development
rights to third parties through contracts or testamentary dispositions, both a political and

6Richard Pipes 1991in Porrini, Giovanni Batista Ramello, Property Rights Dynamic s, op.cit, pp 22
7Ibidem, pp.23
8Ibidem, pp. 23
9Ibidem, pp. 24
10Ibidem, pp.24

5
ideological revolution was required to reshape the dominant conception and content of
property11. In 178912 during the Estates General13 took place a massive waiver from the
French nobility to the benefits and privileges enjoyed for over 200 years, multiple personal
servitudes being now free from the land and the possibility to pay a sum of money in order
to release these servitudes was enacted. However, the people couldn ’t afford the large
amount of money required by the lords to obtain this benefit.14
The French Revolution15 marked the abolition of these privileges and servitudes and
elimination of the compensatory fees. The modern conception of property contrasted with
the feudal one, the 1790s being a big step forward into the concept of property regime and
the absolute character of property which gained more and more legitimacy.16
Property rights, as de facto if not a de jure institution, have therefore existed for almost as
long as human society.17The complexity of human rights, together with the emergent
development of the economical area generated the need for secure property rights.18
On the other hand, it has been opined that the birth of property rights, especially the private
property was a prerequisite, a necessary precondition to a free market.It appeared as a
“counterbalance ” to the labour movement and the normative of human righ ts, having a great
impact on the economy and the relation between the state and the individual. It is considered
that the owners of property had access easily to the political branch and resources of the
state. Back in 1688, England was facing a revolutionary period whereas the model of “king

11Ibidem, pp.24
12 On 4 august 1789 was held the first session of the Estates General
13Estates-General, also called States General, French États-Généraux, in France of the pre-
Revolutionarymonarchy, the representative assembly of the three “estates,” or orders of the realm:
the clergy and nobility —which were privileged minorities —and a Third Estate, which represented the
majority of the people according to https://www.britannica.com/topic/Estates-General , last accessed 14
February 2017
14Ibidem, pp. 25
15 Especially in Europe and France
16Donatella Porrini, Giovanni Batista Ramello, Property Rights Dynamic s,op.cit, pp 12
17 Bailey 1992, in Donatella Porrini, Giovanni Batista Ramello, Property Rights Dynamic s, op.cit, pp. 13
18Lvmore, 2002 in Donatella Porrini, Giovanni Batista Ramello, Property Rights Dynamic s, op.cit, pp.14

6
of parliament ” has been established, and where the owners of such, in exchange for the
recognition of the government ’s attribution to collect taxes have received access to the
Parliament. Furthermore, in 1770s during the American Revolution, central government
represented a colition of property ownerswhith explicit suffrage requirements, now in
greater number, in contrast to the propertyless.19
Locke named property as an object outside of human society, in the “state of nature ”, the
individual owners of which would agree to form a state to protect, its object it is presumed
to be necessary and exclusively material.20It was also affirmed that “The architecture of
property rights speaks volumes about a society ”21.Acording to Alchian22 the benefit of
deciding the way of using a certain good, both with the possibility to exclude another person
from interfering with it means you have a right to property.23

19Ibidem, pp. 13
20Ibidem, pp. 199
21Ibidem, pp. 3
22 Armen A. Alchian, Property Rights , The Concise Encyclopedia of Economics, Second Edition,
available at http://www.econlib.org/library/Enc/PropertyRights.html
23 Donatella Porrini, Giovanni Batista Ramello, Property Rights Dynamic s,op.cit, pp. 2

7

II. The legal content of the right to property
II.1. Object
The international regulations do not offer a specific definition of the right to property, but
the regional bodies have provided several indications in order to frame its object and its
general content. On one hand we can refer to the property which is already owned or
possessed where the applicant has the “legitimate expectation ” to effectively obtain the
protection and enjoyment of its right.24On the other, the object of the right can have th e
meaning of acquired property/which is ought to be acquired by a person which appeals to
the law instruments in order to value its right.25
Not in opposition but in contrast to this, some proposals also defend a universal right to
private property, in the sense of a right of every person to effectively receive a certain
amount of property, grounded in a claim to Earth's natural resources or other theories of
justice .26
From a jurisprudential perspective we can point out that the Court doesn ’t include any
acquirement of the right to property as having its fundament in to the Protocol or the
Convention. The Court takes the view27 that “the hope of recognition of a property right
which it has been impossible to exercise effectively ” and “conditional claim which lapses as
a result of the non-fulfilment of the condition ” do not always have its origins in Article 1 of

24Maltzan and others v. Germany, Applications nos. 71916/01, 71917/01 an d 10260/02, Decision of 2
March 2005, para 74 (c); Kopecký v. Slovakia, Application No. 44912/98 , Judgment of 28 September
2004, 74(c) available at http://hudoc.echr.coe.int/eng#{"itemid":["001-68660" ]}, last accessed 14 February
2017
25Ibidem
26 Stilman, Gabriel. "La Biblia, Laudato Si y el derecho universal a la propiedadprivada" El Dial –
BibliotecaJurídica online . Retrieved 2 February 2016, last accessed 14 February 2017,
.https://en.wikipedia.org/wiki/Right_to_property#cite_note-5
27Maltzan and others v. Germany, Application no. 44912/98, 1978

8
Protocol No.128. A good example in this sense it is the Malhous vs. the Czech Republic29
case where the Court decided that the applicant couldn ’t have the legitimate expectation of
obtaining the restitution of his father ’s property, taking into consideration the fact that the
Land Ownership Act30 protected only the possession assigned to legal persons or the states,
but not the ones attributed to natural persons.
A congruent approach to the above mentioned one was reached by The Inter-American
Court of Human Rights in the Five Pensioners case31, due to the fact that the prerequisite of
having a right in the lawful sense, an “acquired “ one, “an asset that formed part of the
patrimony of the alleged victims ”.
As far as the indigenous ’ people are concerned and their right to property, the African
Commission on Human and Peoples ’ Rights stated into judgement Endorois Welfare
Council v s. Kenya 32 that :
(1) traditional possession of land by indigenous people has the equivalent effect as that of a
state-granted full property title;
(2) traditional possession entitles indigenous people to demand official recognition and
registration of property title;

28Ibidem, para 72
29Malhous vs. the Czech Republic, last accessed 14 February 2017, https://lov data.no/static/EMDN/emd-
1996 -033071-1.pdf ,
30The Land Ownership Act regulates, inter alia, the restitution of certain agricultural a nd other property
(defined in section 1) which has been ceded or transferred to the State or other legal persons between 25
February 1948 and 1 January 1990. Section 6(1) lists the acts givin g rise to a restitution claim including,
in sub-paragraph (b), confiscation without compensation pursuant to th e 1948 Act.
31 Case of the “Five Pensioners” v. Peru Judgment of February 28, 20 03, last accessed 14 February 2017
available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_98_ing.pdf
32 Centre for Minority Rights Development (Kenya) and Minority Rights Gro up International on behalf of
Endorois Welfare Council v. Kenya, Communication No. 276 / 2003, May 2 009, para 209, last accessed 15
February 2017, available at
https://www.hrw.org/sites/default/files/related_material/2010_africa_commission_rulin g_0.pdf

9
(3) the members of indigenous peoples who have unwillingly left their traditional lands, or
lost possession thereof, maintain property rights thereto, even though they lack legal title,
unless the lands have been lawfully transferred to third parties in good faith;
(4) the members of indigenous peoples who have unwillingly lost possession of their lands,
when those lands have been lawfully transferred to innocent third parties, are entitled to
restitution thereof or to obtain other lands of equal extension and quality, therefore
“possession is not a requisite condition for the existence of indigenous land restitution
right “33.
Basically, the commission brought to mind its view, while considering the self-governing
meaning of property rights and basically reiterating its Ogoni case opinion34, where it
concluded that right to property “includes not only the right to have access to one ’s property
and not to have one ’s property invadedor encroached upon, but also the right to
undisturbed possession, use and control of such property however the owner(s) deem fit. ”35
The term ”possessions ” from the legal text of Article 1 Protocol 1 it is ample. A range of
economic interests falls within the scope of the right to property, including movable or
immovable property, tangible or intangible interest.36.The applicability of this article was
admitted in case of Bramelid and Malmström v. Sweden37 having as object the ownership of
shares in a company. The subject of debate was whether the shares of the company can be

33Horatia Muir Watt, Diego P. Fernández Arroyo, Private International Law and Global Governance OUP
(Oxford , 18 dec. 2014), pp.5
34Fons Coomans, The Ogoni Case before the African Commission on Human and Peoples’ Rights, last
accessed 15 February 2017
http://www.righttoenvironment.org/ip/uploads/downloads/OgoniCaseProf.Cooman s.pdf
35Dinah Shelton, Paolo G. Carozza, Paolo Wright-Carozza , Regional Protection of Human Rights, Volume
1 (OUP USA, 30 mai 2013) pp. 787
36 Monica Carss-Frisk, A guide to the implementation of Article 1 of Protocol No. 1 to the European
Convention on Human Right , The right to property, op.cit, pp.10
37 Applications Nos. 8588/79 and 8589/79, Bramelid and Malmström v. S weden (1982), last accessed 15
February 2017, http://hudoc.echr.coe.int/eng#{"itemid":["001-74445"]}

10
included in the wide term of possession38 and the conclusion resulted positive due to its
economic value and the rights deriving from this character.

Also, in Stran Greek Refineries and StratisAndreadis v. Greece39, an arbitration award was
considered by the European Court of Human Rights a “possession ” for the purposes of
Article 1 of Protocol No. 1.40
One of the most interesting object of the right to property, assimilated with the “possession ”
in the legal regulation ’s sense it is highlighted into Pine Valley Developments Ltd v. Ireland
case41 where the Court decided that the legitimate expectation that a precise state of affairs
will aply it is protected by the law: Until it was rendered, the applicants had at least a
legitimate expectation of being able to carry out their proposed development and this has to
be regarded, for the purposes of Article 1 of Protocol No. 1 (P1-1), as a component part of
the property in question .

In conclusion, taking into consideration the above mentioned cases, it is noteworthy and
indisputable that land it is one of the most important object of the property right, and
probably the most debated in practice together with other potentional objects of the right to
property, such as “contractual rights with economic value, professional clientèle, goodwill ,
entitlement to compensation if certain criteria are met and future income if it has been
earned or is “definitely payable. “42

38 As stipulated by Article1 Protocol 1, European Convention on Human R ights
39Öneyildiz v. Turkey, Application no. 48939/99, 2004, last accessed 16 February 2017, available at
http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-45603&filena me=001-45603.pdf.
40 Monica Carss-Frisk, A guide to the implementation of Article 1 of Protocol No. 1 to the European
Convention on Human Right , The right to property, op.cit, pp.14
41Pine Valley Developments LTD and Others v. Ireland (Application no. 12742/87 ) , Strasbourg 1991, last
accessed 18 February 2017, available at
http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-57711&filena me=001-
57711.pdf&TID=ihgdqbxnfi
42 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , Droits et
Democratie, Geneva Academy of International Humanitarian Law and Human rig hts, pp.13

11
II.2. Holder of the right to property
Article 1 of Protocol No. 1 to the European Convention on Human Rights declares since the
beginning which are the owners of the right, who can benefit from the “peaceful enjoyment
of possessions “: natural and legal persons. Therefore, beside the natural persons, also the
corporate bodies can prevail from the provisions of this text.43 An indirect victim is “a
person who can show that there was a special personal connection between himself and the
direct victim and that the violation of the Convention has caused him harm, or that he had a
justified personal interest that the violation should cease ”44.
A different regulation concerning the recipients of this right can be encountered in Article
21 of the American Convention on Human Rights45 : “Everyone has the right to the use and
enjoyment of his property “. The interpretation given to the general term “everyone “ refers
to the collective right of indigenous people46 :“since lands are collective property of the
community, there is no way that one member can freely transmit to another his or her rights
in connection with the use of the land “47; “Nobody owns the land individually; the land ’s
resources are collective “48. This judgement links indigenous people to their land and their

43Monica Carss-Frisk, A guide to the implementation of Article 1 of Protocol No. 1 to the European
Convention on Human Right , The right to property , Human rights handbooks, No. 4 (2001), pp 7 last
accessed 18 February 2017, available a
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09 00001680
07ff4a
44Delvaux, “The notion of victim under Article 25 of the European Convention on Human Rights ”, Fifth
International Colloquy about the European Convention on Human Rights , published by C.F. Müller
JuristischerVerlag, Heidelberg 1982 in Laurent Sermet, The European Conve ntion on Human Rights and
property rights, Human rights files, No. 11 rev, Council of Europ e Publishing F-67075 Strasbourg Cedex,
1999
45 American Convention on Human Rights "PACT OF SAN JOSE, COSTA RICA" (B -32), last accessed 19
February 2017, available at http://www.oas.org/dil/treaties_b-
32_american_convention_on_human_rights.pdf
46 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , op.cit, pp.16
47 Inter-American Court of Human Rights Case of the Mayagna (Sumo) AwasTingni Community v.
Nicaragua Judgment of August 31, 2001 (Merits, Reparations and Costs) , pp. 19, last accessed 18 February
2017, available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_79_ing.pdf
48Ibidem, pp. 18

12
scheme of possessing land, which basically fosuses on the group/community, not on the
individual.
It is interesting to outline in the context of the holders of the right the women ’s status, that
have been for decades suppressed, by exemplifying the Marckxvs. Belgium case49, whereas
the Court established that Article 1 of Protocol No. 1 to the European Convention on Human
Rights was violated by means of practices that favors discrimination. The limitation
imposed to a mother that wasn ’t married to dispose of her property (especially by making
gifts and heritages50) to her child, limitation that do not apply to the married ones violates
the Protocol and the “Court fails to see on what general interest, or on what objective and
reasonable justification51“ this kind of constraint it is applied. Another case that
evidentiatethe discrimination between the two sexes it is the case of Graciela Ato del
Avellanal v. Peru52, where the applicant ’s right to claim the ownership of two apartments
was bannedon the consideration that only “when a woman is married only the husband is
entitled to represent matrimonial property before the Courts “. 53The court considered that
the inequality of rights between sexes must be considered a violation ofArt.3 and Art.26 of
the national regulation54 which guarantees the egalitarianism of civil and political rights, as
well as the protection of the law.
This case it can also be considered as a good example for illustrating the connecti on
between the right to property and other rights, alike the one established by Article 6 of the
European Convention on Human Rights55 "the right to a free trial". Property rights are
generally considered to be part of the civil rights cathegory, therefore Article 1 may be

49Marckx v. Belgium, application No. 6833/74 (2006)
50Ibidem, para 65
51Ibidem, para 101
52 Graciela Ato del Avellanal v. Peru, Communication No. 202/1986, U.N. Doc. Sup p. No. 40 (A/44/40) at
196 (1988), last accessed 19 February 2017, available at http://hrlibrary.um n.edu/undocs/session44/202-
1986.html
53Ibidem, para 42
54Ibidem, para 43
55European Convention on Human Rights, available at
http://www.echr.coe.int/Documents/Convention_ENG.pdf

13
considered an application of Article 6, an augumentation to the guarantees implemented by
the provisions of the last one.56 In the same manner, as long as the object of the possession it
is thethe place recognized as "home", the right to respect for private and family life it is in
interdependence also with article 1. 57
II.3.Content of the right to property
A noteworthy case that can illustrate the content of the right to property58 it is Sporrong and
Lönnroth v. Sweden 1982. Quoting paragraph 61 of the judgement:
"That Article (P1-1) comprises three distinct rules .
The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of
property; it is set out in the first sentence of the first paragraph.
The second rule covers deprivation of possessions and subjects it to certain conditions; it
appears in the second sentence of the same paragraph.
The third rule recognises that the States are entitled, amongst other things, to control the
use of property in accordance with the general interest, by enforcing such laws as they deem
necessary for the purpose; it is contained in the second paragraph.
The Court must determine, before considering whether the first rule was complied with,
whether the last two are applicable."59
In accordance to the presented interpretation of the article, the potential destitution or
limitation of the property it is permitted under several conditions. The criteria for any
interference must be recognized as a proportional and justified measure.

56 The European Convention on Human Rights and property rights , Human rights files, No. 11 rev, op.cit,
pp. 7
57Ibidem, pp. 9
58 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , op.cit, pp.14
59Sporrong and Lönnroth, Application no. 7151/75; 7152/75, Jud gment of 23 September 1982, para 61, last
accessed 19 February 2017, available at
athttp://web.changenet.sk/aa/files/207e345aa907113543b0857cd6856c71/a52_ 1982_eu__sud_case_of_spor
rong_and_lonnorth_vs_sweden.pdf

14
III. The legal framework for the right to property
The importance of the right to property it is obvious and undeniable, conclusion which
arises also from the numerous legal regulations, both in international treaties and regional
human rights instruments. Therefore, I will present in the following chapter the most
relevant provisions of law.
III.1.International Law
“The concept that a right to property should exist regardless of national law was reborn in
the wake of World War II as part of the modern human rights movement .”60
The Universal Declaration of Human Rights (UDHR) was adopted at the Palais de Chaillot ,
Paris on 10 December 1948 by the United Nations General Assembly was the first major
step taken regarding the evolution of the protection of the right to property.61 On the
grounds of the Second World War experiences, the society ’s need to entitle various rights
for people was firstly concretized by the text of UDHR. Article 17 of the text provides a
legal regulation of the right to property: “everyone has the right to own property alone as
well as in association with others ” and that “no one shall be arbitrarily deprived of his
property ”62.
Having a generic formulation, the first clause recognizes the right to property to everyone,
meanwhile the second one limits the possibility of arbitrary interference with private
property making it non-absolute. The adoption of the Declaration was considered to be one
of the prior measure toward a treaty that would effectively protect and guarantee property.
Another enactment was made after three year since the adoption of UDHR, in the body of
the Status of Refugees63, Article 13 containg provisions about movable and immovable
property, identifying as a state obligation the need to accord the same conditions of

60 John G. Sprankling, The Global Right to Property , Columbia Journal of Transnational Law, pp 4
61 Universal Declaration of Human_Rights, last accessed March 18, 2017, article available at
https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights
62 Universal Declaration of Human Rights adopted in 1948, Art. 17(1) and ( 2)
63 Convention relating to the Status of Refugees adopted in 1951, last acces sed March 19, 2017 available at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfRefugees.aspx

15
acquisition and other related acts to the refugees as they accord to aliens: “The Contracting
States shall accord to a refugee treatment as favourable as possible and, in any event, not
less favourable than that accorded to aliens generally in the same circumstances, as regards
the acquisition of movable and immovable property and other rights pertaining thereto, and
to leases and other contracts relating to movable and immovable property ”64.
With the aim of establishing a general duty for the states to defeat any discriminatory
treatment on behalf of racial difference65, The International Convention on the Elimination
of All Forms of Racial Discrimination was adopted in 1965. The right to property was
guaranteed by the Convention, having the same formula as in the UDHR, but without any
further clause about limitations or possibility to interfere: “In compliance with the
fundamental obligations laid down in article 2 of this Convention, States Parties undertake
to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right
of everyone, without distinction as to race, colour, or national or ethnic origin, to equality
before the law, notably in the enjoyment of the following rights: (v) The right to own
property alone as well as in association with others ”. 66
By 1966, although the adoption of two international covenants: Covenant on Civil and
Political Rights (ICCPR) and the International Covenant of Economic, Social and Cultural
Rights (ICESCR) isn ’t a worth mentioning year regarding the regulation of the propert y
right.67 Some authors suggested that the antagonic perspectives between the northerns and
southerns, as well as the eastern and western blocs resulted in the absence of legislation
regarding this right.68 However, this silence of the two acts cannot be interpreted as a denial
of it, as long as the DOCUMENT A/29291 Annotations on the text of the draft International

64 Convention relating to the Status of Refugees, art.13
65 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective ,op.cit, pp. 2
66 The International Convention on the Elimination of All Forms of Racial Dis crimination , art 5, point v,
last accessed March 19, 2017available at http://www.ohchr.org/EN/ProfessionalInter est/Pages/CERD.aspx
67 IoanaCismas, The Right To Property From a Human Rights Perspective ,op.cit, pp.5
68 E. Riedel, Theorie der Menschenrechtsstandards, Berlin, Duncker&Humbolt, 1 986, at 39 in Christophe
Golay, IoanaCismas, The Right To Property From a Human Rights Perspective ,op.cit, pp.4

16
Covenants on Human Rights of the General Assembly of UN69 have the matter of “inclusion
or non-inclusion of the right of property ” as listed subje ct of discussion. However, the term
of “property ” appear into both documents as a factor of non-discrimination.70
Another document aimed to defeat discrimination, this time with a specific aim: the
discrimination between sexes undertakes to equal treatment in matters of ownerships of
property. The International Convention on the Elimination of All Forms of Discrimination
against Women, states that 71:”States Parties shall accord to women, in civil matters, a legal
capacity identical to that of men and the same opportunities to exercise that capacity. In
particular, they shall give women equal rights to conclude contracts and to administer
property and shall treat them equally in all stages of procedure in courts and tribunals .”
Finally, in article 16, the Convention returns to the issue of marriage and family relations,
asserting the equal rights and obligations of women and men with regard to choice of
spouse, parenthood, personal rights and command over property. 72
In 1989 was adopted the International Labour Organization Convention No. 169 concerning
Indigenous and Tribal Peoples , which mentions the rights of ownership and possession of
the peoples concerned over the land they traditionally occupy, and the States ’ obligation to
identify this land and guarantee effective protection of their rights of ownership and
possession (Art. 14). Where the relocation of these peoples is necessary, it shall take place

69 DOCUMENT A/29291 Annotations on the text of the draft International Covenant s on Human Rights,
last accessed March 25, 2017, available at
http://www2.ohchr.org/english/issues/opinion/articles1920_iccpr/docs/A-2929.pdf
70 ICCPR, Art. 2(1) provides that: “ Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colou r, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status .” According to ICESCR, Art 2(2):
“The States Parties to the present Covenant undertake to guarantee that the rig hts enunciated in the
present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status .”
71 The International Convention on the Elimination of All Forms of Discrimi nation against Women, art.
15(2)
72 Introductory to the Convention on European Human Rights, last ac cessed March 25, 2017 available at
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article15

17
with their free and informed consent, and they shall be provided with lands of equal quality
and legal status or be fully compensated (Art. 16).73
One of the most accurate legal provision regarding the right to property74 can be
encountered into the content of the The International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families75 which explicitly
forbiddens the deprivation of property and in case of expropriation, a just reimbursement it
is mandatory to the owner of the right (in this case a migrant): “No migrant worker or
member of his or her family shall be arbitrarily deprived of property, whether owned
individually or in association with others. Where, under the legislation in force in the State
of employment, the assets of a migrant worker or a member of his or her family are
expropriated in whole or in part, the person concerned shall have the right to fair and
adequate compensation .”76 This legal regulation is one of the most complex, besides the fact
that instituted in favor of migrants a legal form of protection of property, it also contains
provisions aiming mandatory compensatory measures that will be awarded in the event of
expropriation.
III.2.Regional regulations
The most accurate legal regulation to begin with would be to recall the provisions of the
Protocol of the European Convention on Human Rights. Although in the body of the
Convention there is no mention about the right to property, the Protocol comes up as a
necessary document that offers protection to the right and also establishes the framework for
potential legal interferences.
Authors affirm tha t “the context in which the ECHR and its Protocol No. 1 have been
drafted – in the aftermath of authoritarian rule and abuse of power by the State – explains
the need for safeguards on State actions. At the same time, States were aware of the social

73The 1989 International Labour Organization Convention No. 169
74 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , op.cit, pp. 4
75 The International Convention on the Protection of the Rights of All Migra nt Workers and Members of
Their Families, 1990, last accessed March 26, 2017, available at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CMW.aspx
76 Ibidem, article 15

18
function that the right to property fulfils, and they were reluctant to submit political
decisions, on issues such as expropriation or nationalization, to judicial review77.The legal
text has a large applicability and has been interpreted by ECrtHR in many cases, creating an
extensive jurisprudence in the matter of the right to property.
III.2.1 The right to property according to Article 1 Protocol 1 from the European
convention on Human Rights

III.2.1.1Analysis of the conditions
It is important to outline that Protocol no.1 refers to the right to the peaceful enjoyment of
his possessions and not to the right of property , issue which was clarified by the
supervision bodies established according to the provisions of the Convention, which
recorded that the expression used in the Protocol means in its essence the guarantee of the
right of property. 78 On the other hand, the European Council ’s bodies read and interpret
the right to property more broadly , by referring to the real estate and movable property,
economic interests or contractual rights with economic value, where the public law claims
are included.79
In order to establish the content of the right we have to literally analyze Article 1 Protocol 1
of ECHR, which enounces the general principle above mentioned as the first rule from
Sporrong and Lönnroth v. Sweden 1982 case, corroborating it with the conditions under
some interferences with the property right are permitted :
"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.

77 T.R.G. Van Banning, The Human Right to Property , Antwerp( Intersentia, 2002), pp.5 in Christophe
Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , op.cit, pp. 5
78 Vincent Berger, summary for Marckxs v. Belgium, pp.319 – 323.
79 Gabriel Micu, Human Rights Course, 2016, pp.81

19
The preceding provisions shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or other contributions or penalties."80
III.2.1.1.1 Lawfulness

The first set forth condition in order for an interference to be permitted according to the
Protocol it is lawfulness. The deprivation of property, according to the above mentioned
regulations have to be the "subject to the conditions provided for by law and by the general
principles of international law". This condition it is obviously mandatory taking into
consideration that the principle of legal certainty it is implicit when talking about democracy
and “inherent in the Convention as a whole and must therefore be satisfied whichever of the
three rules applies .”81 Of course, the term “law” can take several forms in order to be
required to comply with, for example the text of the Constitution, the European or
international law, a subordinate law and so on. The Court expressed its opinion upon the
meaning of ” law” from Article 1 Protocol 1 in thecase of James and Others vs The United
Kingdom82, judgement which became a reference into the study of the preconditions of
deprivation or control of property: “The Court has consistently held that the terms "law" or
"lawful" in the Convention "[do] not merely refer back to domestic law but also [relate] to
the quality of the law, requiring it to be compatible with the rule of law .”83
Although it doesn ’t offer a specific definition, at least established a criteria by which the
term may be interpreted. Moreover, “the law must be accessible (published) and its

80 Article 1 Protocol 1, European Convention on Human Rights, last acces sed 19 February 2017, available
at http://www.echr.coe.int/Documents/Convention_ENG.pdf
81 Aida Grgiæ, ZvonimirMataga, MatijaLongar and Ana Vilfan, Human rights handbooks, A guide to the
implementation of the European Convention on Human Rights and its protoco ls, No. 10, 1st edition, June
2007 Printed in Belgium, pp.12, last accessed 19 February 2017, availab le at
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09 00001680
07ff55
82 James and others v. The United Kingdom, 21 february 1986, last ac cessed 25 February 2017, available at
http://echr.ketse.com/doc/8793.79- en-19860221/view/
83 James and others v. The United Kingdom, para 61

20
provisions formulated with sufficient precision to enable the persons concerned to foresee,
to a degree that is reasonable in the circumstances, the consequences which a given action
may entail and to regulate their conduct[..]it requires a certain level of foreseeability, which
depends on the content of the instrument in question, the field it is designed to cover and the
number and status of those to whom it is addressed .”84
For example, ECrtHR concluded in the case of Belvedere Alberghiera v. Italy85that “the
interference in the applicants' right to the peaceful enjoyment of their possessions had not
been compatible with the principle of lawfulness and that, consequently, there had been a
violation of Article 1 of Protocol No. 1. ”86The factual situation refers to an expropriation of
the applicant ’s land whereas it was supposed to be build a road by the resolution of Monte
Argentario municipality. The land was taken into possession by the municipality, without
any notice and the road-building begun immediately.87 The Court considered it unlawful,
especially the denial of the national authorities to refund the owner, considering the state ’s
conduct a breach of Article 1 of Protocol No. 1.88
III.2.1.1.2. Legitimacy

The second condition, traduced in terms of public interest and general interest can be named
summed up in one term:legitimacy.
Several interpretations of this condition has been made by the Court during time,
noteworthy in this sense being James judgement mentioned above89 whereas the difference
between general and public interest as concepts it isn ’t contoured, but some specific ideas
have been contoured : “a taking of property effected in pursuance of legitimate social,

84 Aida Grgiæ, ZvonimirMataga, MatijaLongar and Ana Vilfan, Human rights handbooks, A guide to the
implementation of the European Convention on Human Rights and its protoco ls, pp 13
85 Belvedere Alberghiera v. Italy, 2000, last accessed 25 February 2017, availab le at
http://www.menschenrechte.ac.at/orig/00_3/Belvedere.pdf
86Guiso-Gallisay v. Italy, 2009, para 3, last accessed 25 February 2017, available at
http://hudoc.echr.coe.int/webservices/content/pdf/001-96496?TID=ihgdqbxnfi.
87 Belvedere Alberghiera v. Italy, 2000, para 7
88 Ibidem, para 73
89 James and others v. The United Kingdom, 21 february 1986, op.cit, para 44

21
economic or other policies may be ‘in the public interest ’, even if the community at large
has no direct use or enjoyment of the property taken ”.90In paragraph 46 of the James and
others v. The United Kingdom case it is stated that the notion of public interest" has to be
interpreted extensively by the national authorities by looking at the social, political and
economic issues that are involved in each trial with respect to the principle of legalty ”91. As
I have mentioned, the Court recognizes the national authorities ’prerogative to appreciate
whether a deprivation may be considered in the public interest or not, due to their better
understanding of each country ’s needs.92 Therefore, we can observe that the Court has a
subsidiary role in controlling the legitimacy aspect of any interference with the property
rights, having more as a supervisory role as it is clear from paragraph 46 : “The Court […]
will respect the [national] legislature ’s judgment as to what is ‘in the public interest ’ unless
that judgment is manifestly without reasonable foundation ”.
However, the criteria o f ”reasonable foundation ” it is likely of many interpretation and can
inevitably lead to errors, or incorrect assessments. This is werethe Court ’s supervision
interferes, noting potential violations of Article 1 of Protocol No 1 and considering the
thereasonableness of the foundation it isn ’t well valued, and a “fair balance between the
protection of the right to property and the requirements of the general interes t“93wasn ’t
rightful esteemed.
Basically, in Katikaridis and others v. Greece case, the Court reiterates those previously
expressed within 10 years in the James case, reffering to the correlation between means and
the desired aim "Not only must a measure depriving a person of his property pursue, on the
facts as well as in principle, a legitimate aim "in the public interest", but there must also be a
reasonable relationship of proportionality between the means employed and the aim sought
to be realized". 94 As a preliminary conclusion and in order to differentiate the two
preconditions better, it should be considered the specification that for the legality condition

90 James and others v. The United Kingdom, 21 february 1986, op.cit, para 45
91 James and others v. The United Kingdom, 21 february 1986, op.cit, para 46
92 Ibidem
93 Katikaridis and others v. Greece, Application no. 72/1995/578/664 ,15 November 1996, last accessed 26
February 2017, para 49, available at http://www.hrcr.org/safrica/property/katik aridis_greece.html
94 Ibidem, para 50

22
to be achieved, a certain provision should be encountered, meanwhile legitimacy refers to
the possibilities offered by law to the owner of the right to stop any violation might occur
from others.

III.2.1.1.3. Proportionality

The above mentioned noteworthy cases suggests a third condition of the deprivation of
property, which although not expressly stated by the letter of the law in Article 1, the Court
considers and reports to it whenever it is hearing a case on violation of property:theprinciple
of proportionality.Sporrong and Lönnroth case95 it is remarkable in this sense, whereas the
Court stated that :
"For the purposes of the latter provision, the Court must determine whether a fair balance
was struck between the demands of the general interest of the community and the
requirements of the protection of the individual ’s fundamental rights.The search for this
balance is inherent in the whole of the Convention and is also reflected in the structure of
Article 1. "

In deciding whether a measure it is proportional or not, the national authorities will check
firstly if it is lawful, the aim of the law it is fully respected and afterwards if the method of
implementing it is rational and steady. After noting that both of them are achieved, it comes
to researching its needfulness.96

The Court ’s supervision therefore implies more than simply aligning the legal regulations in
the area with the magnitude of the deprivation, but extends to examine whether it has to be
taken or not, whether is reasonable and imperative from case to case. In Case of Gillow v.

95 Sporrong and Lönnroth, Application no. 7151/75; 7152/75, Jud gment of 23 September 1982, para. 69
96 The European Convention on Human Rights and property rights, Human rights files, No. 11 rev, op.cit,
pp .34

23
The United Kingdom97, where the Court was requested to decide whether the Articles 6, 8
and 14 (art. 6, art. 8, art. 14) of the Convention and Article 1 of Protocol No. 1 were
disregarded98. It was highlighted the need to investigate each case individually because the
variety of problems that may occur and peculiarities of individual measures may inevitably
lead to different conclusions regarding the proportionality of the maneuver: the scope of the
margin of appreciation enjoyed by the national authorities will depend not only on the
nature of the aim of the restriction but also on the nature of the right involved.99This
suggests thatthe degree of interference have to be conscientiously examined before taking a
resolution.

The proportionality feature have to be tested in both cases: of deprivation or control of
property,but clearly this aspect differs depending on the kind of interference. ECHR clarifies
it in a tranchantly manner in the above-mentioned judgement having as applicants the british
citizens Joseph and Yvonne Gillow: the measure of proportionality clearly differs in the
application of the two rules since […] a depri vation of property is inherently more serious
than the control of its use, where full ownership is retained. 100

A relevant application of the principle whereas the control of property it is
encountered101(third rule stated by Sporrong and Lönnroth v. Sweden 1982) can be
considered Case of GasusDosier- Und Fordertechnik GmbH v. The Netherlands debated in
the front of the Court back in 1995102. Shortly ressuming it, the applicant ’s company sold
some products to another trader, under the condition that the property will remain to the

97Gillow v. The United Kingdom (Application no. 9063/80), 1986, last access ed March 4, 2017, available
at http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-57493&filen ame=001-
57493.pdf&TID=ihgdqbxnfi.
98 Ibidem
99 Gillow v. The United Kingdom (Application no. 9063/80), 1986,op.cit, p ara 55
100 The European Convention on Human Rights and property rights, Human rights files, No. 11 rev, op.cit,
pp. 35
101 Ibidem, pp. 36
102 GasusDosier- und Fördertechnik GmbH v. the Netherlands judgment of 23 February 1995, Series A no.
306-B, last accessed March 5, 2017, available at http://hudoc.echr.coe.int/eng#{"item id":["001-57918"]}

24
clerk until the price it is fully paid. A foreclosure was started one month later against the
buyer, that made him unable to meet with its financial obligations. 103 The applicant claimed
that Article 1 of Protocol 1 it only allowed States to interfere with the tax debtor ’s peaceful
enjoyment of his possessions to secure payment of the taxes he owed. It did not allow them
to deprive third parties of their possessions.104 The mandatory requirement of between "the
means employed and the aim pursued " was fulfilled in this case, therefore the Court decided
that there had been no violation of Article 1, the measure taken by the bailiff being in
accordance with the provision of the Tax Collection Act from 1845105. In the content of the
judgement it is stipulated that the national authorities with attribution in the enactement of
the laws have the discretionary power to regulate the means of collecting taxes, their
quantum and other fiscal measures, as long as the fair balance we have reminded about
above it is respected and no abuses are made.106

However, some authors107 affirm that In respect to the control of property (third rule) the
Court sets the standard of proportionality at a lower level – consequently allowing for a
wider margin of appreciation to States – than in cases related to deprivation or
expropriation (second rule).

To conclude, in order for Article 1 Protocol 1 to be applicable and a deprivation or other
interference to be considered just, it should be in accordance with law, general and public
interest and proportional in accordance to the European regulations.

Almost the same vision it is encountered into the African Commission ’s jurisprudence
related to the property right protected by the African Charter108.Returning to Endorois

103 Ibidem
104 GasusDosier- und Fördertechnik GmbH v. the Netherlands judgment of 23 Feb ruary 1995,op.cit. para
65
105 Applicable legal framework for the collection of debts in this trial/ case
106 GasusDosier- und Fördertechnik GmbH v. the Netherlands judgment of 23 February 1995, op.cit, para
62, para 67
107 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective, op.cit, 15
108 Ibidem, pp. 16

25
Welfare Council vs. Kenya case mentioned above, with reference to both domestic and
international legal provisions, the commission stated that “in the interest of public need or in
the general interest of the community ” and “in accordance with appropriate laws “109.
Moreover “The African Commission is of the view that any limitations on rights must be
proportionate to a legitimate need, and should be the least restrictive measures possible “110.

A noteworthy fact is that the Commission recognizes that the „public interest‟ test is met
with a much higher threshold in the case of encroachment of indigenous land rather than
individual private property. In this sense, the test is much more stringent when applied to
ancestral land rights of indigenous peoples .111

III.2.1.2. The general principle of law and the compensatory measures in case of
deprivation/ control of property

In our domestic law112, similarly to the regulations ofACHR for example, has specific
regulations with respect to the compensatory measures owed to the victims of violation of
right to property. However, the European Convention mentions nothing about the principle
of compensation, but the lack of enactment hav en’t stopped the courts to apply the general
principle of international law in accordance with „any violation of an international
obligation which has caused damage carries with it the obligation to provide adequate
reparation for it ” in issuing decisions regarding compensation „113as a legal basis to provide
just indemnifications.

109 Centre for Minority Rights Development (Kenya) and Minority Rights Gro up International on behalf of
Endorois Welfare Council v. Kenya, Communication No. 276 / 2003, para 21 1
110 Ibidem, para 214
111 Ibidem, para 212
112 As I will present in Chapter V
113 Unknown author, Breach of an international obligation, pp 97-124,last accessed March 6, 2017, article
available at http://legal.un.org/legislativeseries/documents/Book25/Book25_part1_ch3 .pdf

26
In the last 40 years, the Court never stopped from applying reimbursements where they were
justified, considering that a deprivation of property which violates the convention involves
implicitly compensatory measures, although we don ’t have a legal basis on the Convention
to apply it.114

Scholars affirm that in the “actual practice there is a strong tradition whereby deprivation
normally leads to compensation and control does not lead to compensation. ”115However,
there is a lack of enactement regarding some indiquators that national authorities or the
Court to bear in mind in the case of compensation, Lithgow and Others v. the United
Kingdom116 being a significant case to report at whenever we are talinkg about
compensatory measures.117
To summarize, the applicants wheren ’t complaining about the nationalization measure taken
upon them, but “they claimed that the compensation which they received was grossly
inadequate and discriminatory and alleged that they had been victims of breaches of Article
1 of Protocol No. 1 (P1-1) to the Convention, taken alone and in conjunction with Article 14
(art. 14~ P1-1) of the Convention ”118.The base value for compensation was calculated in
accordance with the provision of law, at a prior value of the shares, taking a reference period
which excludes the present situation, due to the possibility in which the shares would
probably increase at the moment of nationalization because of knowing such measure it is
about to take place.119
Regarding the standards of the compensation, the Court affirmed that : “the taking of
property without payment of an amount reasonably related to its value would normally
constitute a disproportionate interference which could not be considered justifiable under

114 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective, pp.20
115 T. R. G. van Banning, The Human Right to Property, Utrecht University , 28 November 2011, in main
thing pp.16
116 Lithgow and Others against The United Kingdom (Application no. 9006/80; 9262/81; 9263/81;9265/81;
9266/81; 9313/81; 9405/81), last accessed March 7, 2017 , available at
http://hudoc.echr.coe.int/webservices/content/pdf/001-57526?TID=eavoalynks.
117 Ibidem, pp.17
118 Lithgow And Others v. The United Kingdom, para. 9
119 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective, pp.20

27
Article 1 (P1-1). Article 1 (P1-1) does not, however, guarantee a right to full compensation
in all circumstances, since legitimate objectives of "public interest", such as pursued in
measures of economic reform or measures designed to achieve greater social justice, may
call for less than reimbursement of the full market value ”120. The obvious conclusion that
might arise in that an entire and full compensation it isn ’t a right per se , but varies from case
to case, depending of the nature of property and the aim pursued, as well as other wxterior
circumstances. The national authorities intervene in this situation “because of their direct
knowledge of their society and its needs and resources, the national authorities are in
principle better placed than the international judge to appreciate what measures are
appropriate in this area and consequently the margin of appreciation available to them
should be a wide one. ”
Another important debated aspect which makes Lithgow and Others v. the United Kingdom
a reference case into the matter of right to property it is the area of applicability of the
principles of international law. I have presented in this paper that lawfulness it is a prior
condition in order for a deprivation or control of property to be considered appropriate. The
applicants disagreed upon the sense encountered into the Article 1 (P1-1) which mentions
the necessity to comply with tthe conditions provided for by law and by the general
principles of international law. They claim that the international law implies “prompt,
adequate and effective compensation for the deprivation of property of
foreignersalsoapplied to nationals .”121 Yet, the Court, taking into consideration the
historical aspects of the sense, didn ’t approve the applicant ’s interpretation, declaring that
“the reference to the general principles of international law was not intended to extend to
nationals.Thetravauxpréparatoires accordingly do not support the interpretation for which
the applicants contended. ”122
In order to acknowledge the guidelines for compensatory measures in relation with the
general principles of international law, the Chorzów Factory Case which dates from 1928
itis considered a reference by courts in matters of destitution of property for foreign persons

120 Lithgow And Others v. The United Kingdom, para 121
121 Ibidem, para 111
122 Ibidem, para 117

28
( both natural or legal).123 The case ’s object rests in a unlawful measure taken by the state,
upon which expropriated within Poland a property of Germans. Considering it in
discrepancy with the rule of law, the Court had to decide how the compensatory dimension
will function, and what guidelines have to be followed in order to reestablish the equity.
Thus, it was settled that: “Reparation must, as far as possible, wipe out all the consequences
of the illegal act and reestablish the situation which would, in all probability, have existed if
that act had not been committed ”,124 principle that was latter consolidated through Article
31 of the 2001 Articles of the International Law Commission [ILC];125Forwards, it is
mentioned that “Restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear; the award, if need be, of
damages for loss sustained which would not be covered by restitution in kind or payment in
place of it. ”126The quoted judgement definitely imposes the obligation of reimbursement in
case of illegal deprivation, being one of the first jurisprudential measure to illustrate this
matter. The issue consists in the fact that, although it is settled the mandatory requisite of
repayment, standards that determine the quantum are yet codified.
Resolution 1803 on Permanent Sovereignty over Natural Resources dated in 1962
considered the need to predicate the obligation of the nationalizing state to pay
compensatory values127, bearing in mind the desire for the permanent sovereignity to be
taken into account in matters of national resources 128 “ Nationalization, expropriation or

123 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective ,pp 18
124 Boleslaw Adam Boczek, International Law: A Dictionary, 2005, pp.110
125 International Committee of the Red Cross, Bosnia and Herzegovina, Practice Relating to Rule 150-
Reparation , Section A. General, last accessed March 11, 2017 available at https://ihl-
databases.icrc.org/customary-ihl/eng/docs/v2_cou_ba_rule150
126 The Factory at Chorzów, Germany v. Poland, Merits, Judgment No. 13, 1 928, P.C.I.J., Series A, No. 17,
p. 47 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights
Perspective, op.cit,pp.18
127 Christophe Golay, Ioana Cismas, The Right To Property From a Human Rights Perspective, op.cit, pp.
19
128 General Assembly resolution 1803 (XVII) of 14 December 1962, "Permane nt sovereignty over natural
resources", last accessed March 12, 2017, available at
http://www.ohchr.org/Documents/ProfessionalInterest/resources.pdf

29
requisitioning shall be based on grounds or reasons of public utility, security or the national
interest which are recognized as overriding purely individual or private interests, both
domestic and foreign. In such cases the owner shall be paid appropriate compensation, in
accordance with the rules in force in the State taking such measures in the exercise of its
sovereignty and in accordance with international law. In any case where the question of
compensation gives rise to a controversy, the national jurisdiction of the State taking such
measures shall be exhausted. ”129Although the necessity of repayment it is clear exposed, the
term they choose to use when talking about reparation it is “appropriate ”.
Due to the fact the choice of terms lead to various interpretations, a wide area of
appreciation into the national system gave birth to serious dicrepances between the amount
of money received by the victims of expropriation, and inevitably to more and more
complaints in justice.130 No reference was made related to the word “appropriate ” in terms
of international law into the 1974 Charter of Economic Rights and Duties of States.Authors
debate about the lack of accurateness of the term and the discrepancies that can occur :
“Given the lack of a general and consistent State practice and the divergence within
doctrine, it is rather difficult to hold the “appropriate compensation ” requirement as it has
been interpreted by developing countries as the customary principle in relation to
compensation. Nonetheless, it would be equally difficult – in the presence of strong
opposition from developing States – to hold the traditional requirement of “prompt,
adequate and effective compensation ” as a continued expression of custom s. 131”
Authors like S. Ripinsky and K. Williams132 discussed about the compensation and it ’s
importance into the international law. They reiterate the conclusion exposed above in the
present paper, whereas the right to reimbursement does not always automatically imply a
full compensation.133The tendency it is to grant a full repayment to applicant in cases of

129 Ibidem , pp 2, para 4
130 Ibidem, pp. 4, para 10
131 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , pp 20
132Ibidem,
133 See above Case of Lithgow and Others v. The United Kingdom

30
“inherent full expropriations ”134 where the entire value of the object of the property will be
refunded, meanwhile when economical and social interests are in the middle, there it is no
guaranteed that the entire amount will be given in redemption. They conclude that
“customary international law is not fully settled on the issue of compensation for lawful
expropriation ”.135

134 Sergey Ripinsky, Kevin Williams , Damages in International Investment Law , BIICL, 2008, pp. 83
135 Ibidem, pp.88

31
IV. States obligations correlative to the right of property
In order to understand better the complex duties a state has to fulfill, correlative to the right
of property, I will present the most relevant three judgements made by important regional
institutions (Echr, Iachr, African commission ’ opinion). As it is well known that every right
has a correlative obligation, the owner of the obligation this case it is the state.According to
the specialists136 the state has both negative and positive obligations. The negative
obligation of the state arises directly from the text of Article P1 and rests in the non-
interference of the state upon the owner of the property rights, except the expressed
mentioned conditions are accomplished and they are also justified. 137
For example, the state ’s negative obligations have been held to include, for example,
expropriation or destruction of property as well as planning restrictions, rent controls and
temporary seizure of property. On the other hand, by virtue of Article 1 of the Convention,
the effective exercise of the right protected by Article 1 of Protocol No. 1 does not depend
merely on the State ’s duty not to interfere, but may require positive measures of protection,
particularly where there is a direct link between the measures an applicant may legitimately
expect from the authorities and the effective enjoyment of his possessions138.
A good example in this sense it is139 the case of Öneryildiz v. Turke140 whereas the Court
decided that the state breached a positive obligation, not a negative one, when no measures
were taken in order to offer protection to the owner of the property in order to prevent an
explosion of methane.141 Another conclusion that arises from this case refers to the state ’s

136 Aida Grgiæ, ZvonimirMataga, MatijaLongar and Ana Vilfan, Human rights han dbooks, A guide to the
implementation of the European Convention on Human Rights and its protoco ls, op.cit, pp.40
137 Ibidem, pp. 11
138 Ibidem, pp. 9
139 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective ,op.cit, pp 21
140 Öneryildiz v. Turkey, (Application no. 48939/99), JUDGMENT STRASBOU RG 2004, last accessed
March 18, 2017 available at
hudoc.echr.coe.int/webservices/content/pdf/00167614%3FTID%3Ddncrwhbaht+&cd=1 &hl=ro&ct=clnk&
gl=ro
141 Ibidem, para 135

32
obligation to implement judicial instruments that comply with rule of the Convention that
offers besides protection to the holders of the right, their possibility to claim any offence of
their right safety and effective.
Also, IAC HR affirmed that states have both positive and negative obligations142, reffering to
mandatory conduts of the states related to the indigenous community, especially by means
of “demarcation, and titling of the territory ”143. Without any doubt, this implies a certain
conduct from the national authorities in order to provide to the indigenous population an
environment in which they are able to exercise their rights freely and sheltered from
potential interferences.
The same vision was provided by the African Commission in Ogoni case mentioned
above144 where “The Commission notes that in the present case, despite its obligation to
protect persons against interferences in the enjoyment of their rights, the Government of
Nigeria facilitated the destruction of the Ogoniland. Contrary to its Charter obligations and
despite such internationally established principles, the Nigerian Government has given the
green light to private actors, and the oil Companies in particular, to devastatingly affect the
well-being of the Ogonis. By any measure of standards, its practice falls short of the
minimum conduct expected of governments, and therefore, is in violation of Article 21 of the
African Charter .”145 In conclusion, the complexity of the duties of the states can be
summarized according to the African Commission as follows “All rights-both civil and
political rights and social and economic-generate at least four levels of duties for a State
that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote,

142 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , op.cit, pp 22
143Mayagna (Sumo) AwasTingni Community v. Nicaragua, Judgment of 31 Au gust 2001, para 153 last
accessed March 18, 2017, available at http://hrlibrary.umn.edu/iachr/AwasTingnicase.ht ml
144 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , op.cit, pp
22
145 Social and Economic Rights Action Center & the Center for Economic and Social Rights v. Nigeria,
Communication No. 155/96, 27 May 2002, para 57 Christophe Golay, IoanaCismas, The Right To Property
From a Human Rights Perspective , pp. 23

33
and fulfil these rights. These obligations universally apply to all rights and entail a
combination of negative and positive duties .”146

Moving to the clauses encountered in to the American Convention on Human Rights, we
can encounter in Article 21 an extensive regulation of the right to property, which is
guaranteed to “everyone ”. Moreover, the permitted limitations are subordinate to the
principle of legalty, imposing to the state ’stheassignement to supervise the owner ’s rights
against any illegal or abusive interference may occur from any individual : “1. Everyone has
the right to the use and enjoyment of his property. The law may subordinate such use and
perty except upon payment of just compensation, for reasons of public enjoyment to the
interest of society. 2. No one shall be deprived of his pro utility or social interest, and in the
cases and according to the forms established by law. 3. Usury and any other form of
exploitation of man by man shall be prohibited by law. ”147
The African Charter on Human and Peoples ’ Rights (AfCHPR) has also a quite broad law
regarding property, the first regulation being encountered in article 13 that guarantees the
equality before law in accesing the public property : “Every individual shall have the right
of access to public property and services in strict equality of all persons before the law .”148
This clause it is considered to be legitimate, in the context of the many exploitations Africa
had to face and its colonial past. 149The next article guarantees the right, toghether with
instituting the limits of interferences, that basically are identifical to the ones in ECHR :
“The right to property shall be guaranteed. It may only be encroached upon in the interest

146 Ibidem, pp.24
147 American Convention on Human Rights "PACT OF SAN JOSE, COSTA RICA (B-3 2), article 21.
148 African Charter on Human and Peoples’ Rights, article 13
149 C. A. Odinkalu, “ Implementing Economic, Social and Cultural Rights under the African Charter o n
Human and Peoples' Rights ”, in M. D. Evans, and R. Murray (eds.), The African Charter on Human and
Peoples' Rights: the system in practice, 1986-2000, Cambridge, Camb ridge University Press, 2002, at 191
in Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , op.cit, pp.6

34
of public need or in the general interest of the community and in accordance with the
provisions of appropriate laws .”150
Article 21 of the AfCHPR states that : ”All peoples shall freely dispose of their wealth and
natural resources. This right shall be exercised in the exclusive interest of the people. In no
case shall a people be deprived of it. 7
2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of
its property as well as to an adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised without prejudice to
the obligation of promoting international economic cooperation based on mutual respect,
equitable exchange and the principles of international law.
4. States parties to the present Charter shall individually and collectively exercise the right
to free disposal of their wealth and natural resources with a view to strengthening African
unity and solidarity.
5. States parties to the present Charter shall undertake to eliminate all forms of foreign
economic exploitation particularly that practiced by international monopolies so as to
enable their peoples to fully benefit from the advantages derived from their national
resource s”151.
The right to dispose of the wealth and natural resources appears legitimate, given Africa ’s
past and comes as a further guarantee to the population. They can obtain full recovery of
their property, and moreover, a fair reimbursement.
The most trenchant regulation it is stipulated in Article 31 of the Arab Charter on Human
rights : “Everyone has a guaranteed right to own private property, and shall not under any
circumstances be arbitrarily or unlawfully divested of all or any part of his
property .”152Aliteral interpretation of the clause can lead to a disjunctive reading which

150 African Charter on Human and Peoples’ Rights, article 14
151 African Charter on Human and Peoples’ Rights, article 21
152 Arab Charter on Human Rights, article 31, available at http://hrlibrary.umn.edu /instree/loas2005.html

35
could be in this case the equivalent of a clawback clause. The article being so general, it
remains to be seen how the terms will be interpreted by the Arab Human Rights Committee
and by a future Arab Court of Justice .153

153 Christophe Golay, IoanaCismas, The Right To Property From a Human Rights Perspective , pp. 6

36
V. Case study : Romania
V.1.The notion of ownership and property rights in Romanian law
On one hand, from a economic perspective, property expresses a social relation of
appropriation of things, directly and immediately.154 On the other, under the juridical aspect,
the ownership represents a set of legal protected attributes, pursuant to which the rightholder
meets directly and immediately its interest related to the ownership of an asset.155
There have been formulated a lot of definitions into the legal doctrine, one of the most
relevant being : the right to property it is that subjective right that gives expression to the
ownership of an asset, allowing the owner to exercise the possession, use and dispose of the
thing in its own power and its own interest, in compliance with the legal provisions.156
V.2.Regulations. The two types of property encountered in the Romanian system
The categories of public and private denote different types of laws, privileges and
governance methods. These terms came into use with the liberal state, and separate of the
private business corporation from the governance corporation. These terms were also
associated whits the institutional separation of the family and firm from the state and the
formation of separate markets for labor and capital. Each separate institution, in turn, was
governed by a different set of laws, some from the common law tradition regarding the
treatment of labor organizations and some from the privileges of merchant corporations.
The role of the Courts became increasingly important, along with different schools of legal
thought and the associated political movements. The treatment of the property as self
evident object helped avoid some of the political issues associated with the social dimension
of the property, as illustrated in the Legal Realist movement of the early twentieth
century .157

154 Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Curs de dreptcivil.Drepturirealeprincipale ,
(Hamangiu 2013) pp. 13
155 Ibidem, pp 13
156Ibidem, pp 14
157 Ann E. Davis, The Evolution of Property relations , op.cit, pp. 140

37
The right to property enjoys a vast regulation in our national law, starting with the
constitutional provisions, the Civil Code (which is considered to be the common law) and
finishing with specials laws that regulate the judicial regime, the manner in which a certain
public property that was abusively taken over by the State during the communist regime, asI
will present extensively in the following chapter.
Starting with our fundamental law, the Constitution of Romania regulates the right of
property and the principle of equal protection and guarantees in front of the law for all the
nationals. Moreover, the expropriation can be held only with a prior and just compensation
from the state, only “on grounds of public utility ”. Article 44158encountered in TITLE II,
Fundamental rights, freedoms and duties, states that:
“(1) The right of property, as well as the debts incurring on the State are guaranteed. The
content and limitations of these rights shall be established by law.
(2) Private property shall be equally guaranteed and protected by the law, irrespective of its
owner. Foreign citizens and stateless persons shall only acquire the right to private
property of land under the terms resulting from Romania's accession to the European Union
and other international treaties Romania is a party to, on a mutual basis, under the terms
stipulated by an organic law, as well as a result of lawful inheritance.
(3) No one shall be expropriated, except on grounds of public utility, established according
to the law, against just compensation paid in advance.
(4) The nationalization or any other measures of forcible transfer of assets to public
property based on the owners' social, ethnic, religious, political, or other discriminatory
features.
(5) For projects of general interest, the public authorities are entitled to use the subsoil of
any real estate with the obligation to pay compensation to its owner for the damages caused
to the soil, plantations or buildings, as well as for other damages imputable to these
authorities.

158 Constitution Of Romania, article 44

38
(6) Compensation provided under paragraphs (3) and (5) shall be agreed upon with the
owner, or by the decision of the court when a settlement cannot be reached.
(7) The right of property compels to the observance of duties relating to environmenta l
protection and ensurance of neighbourliness, as well as of other duties incumbent upon the
owner, in accordance with the law or custom.
(8) Legally acquired assets shall not be confiscated. Legality of acquirement shall be
presumed.
(9) Any goods intended for, used or resulting from a criminal or minor offence may be
confiscated only in accordance with the provisions of the law. ”
Before 1990, the public property was much more extensive, due to the fact that most of the
belongings, especially land had as an owner the state itself. The adoption of Land Law in
1991 represented a big step further into the the evolution of the concept of private property,
as there has been a redistribution of the rightholders of property ~ from the former state to
the individuals or private companies ~.159

Also, the revised Constitution from 2003160established the two types of property existing in
Romania, together with providing some characteristics for each type:
“(1)Property is public or private.
(2) Public property is guaranteed and protected by the law, and belongs to the State or to
territorial-administrative units.
(3) The mineral resources of public interest, the air, the waters with energy potential that
can be used for national interests, the beaches, the territorial sea, the natural resources of
the economic zone and the continental shelf, as well as other possessions established by the
organic law, shall be public property exclusively.

159 CMS lawyers, The property regime in Romania, 2004 last accessed April 1, 2017, available at
http://www.cms-lawnow.com/ealerts/2004/02/the-proper ty-regime- in-romania?cc_lang=en
160 Romanian Constitution, art.136

39
(4) Public property is inalienable. Under the terms of the organic law, the public property
can be managed by autonomous régies or public institutions, or can be granted or leased;
also, it can be transferred for free usage to public utility institutions.
(5) Private property is inviolable, in accordance with the organic law. ”
Article 552 of the Romanian Civil Code reiterates the regulations of the Constitution, by
providing that Property is public or private.161
V.2.1.Public property
V.2.1.1.Subjects, object, content

Article 136(3) from the Constitution and article 859 from the Civil Code enumerates certain
goods that belong exclusively to public property. Also, Law No. 213/1998 concerning
public property and its juridical regime as amended by the Romanian Civil Code that
entered into force in 2011, stipulates in article 3:

(1) The public domain shall consist of the goods provided under art. 135 para. (4)162 of the
Constitution, of those established in the Appendix which forms and integrant part of the
present law, and of any other goods which, according to the law or by their nature, are of
public use or interest and are acquired by the State or by the territorial-administrative units
through the ways provided by law.
(2) The public domain of the State shall consist of the goods provided under art. 135 para.
(4) of the Constitution, of those provided under point I of the Appendix as well as of other
goods of national public interest or use declared as such by law.163
The main characteristics of this right, as well as the owners of the right are expressly
stipulated into article 858 and the following for the Civil Code. According to Article 858164
the rightholders of the public assetsare the administrative-territorial units and the state

161 Civil Code, article 125
162 After the revision of the Constitution, it became article 136
163 Law No. 213/1998 concerning public property and its juridical regime
164 Civil Code, article 858

40
which, by their nature or by the statement of the law, household or public interest, which
were acquired by one of the ways provided by law.

The public ’s domain benefit from being inalienable, imperceptible and
imprescriptible.165The inalienability feature means that they cannot be estranged except
from the expressed regulations of law (rents and concessions for example)166and also cannot
be the subject of the dismemberment of the ownership. Our legislation include here the right
to use, usufruct, occupate, servitude and the superficies. The property upon these assets is
not quenched though passing a vast amount of time without using it and cannot be acquired
by usucapion, or good faith possession of the mobile assets. Also, the creditors cannot
follow these goods in order to reclaim their debtor ’s patrimony and capitalize their debts due
to the imperceptible character of the public property. Moreover, it is imprescriptible , so is
not extinguished by unuse and also, the action in claiming a good public property can be
exercised at any time, being imprescriptible extinctive even in those exceptional situations
in which the action in revenedication it is prescriptible.167

The ways of acquiring the right to property are exemplary provided by law168, but we will
focus on the one which is relevant for our subject of discussion: expropriation for public
utility.
V.2.1.2.Expropriation and Restitution Laws

In Romania, the expropriation for a case of public utility was regulated for the first time by
Law for expropriation a case of public utility, in 20 October 1864, which underwent
numerous changes to repeal Decree no. 417/1949, by the communist regime, which had just
installed, the depositions of the law becoming incompatible with the political exigencies of

165 Civil Code, article 860
166Ibidem, para (3)
167 Christophe Golay, Ioana Cismas, The Right To Property From a Human Rights Perspective , op.cit, pp. 6
167Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Curs de dreptcivil.Drepturirealeprincipale ,
op.cit, pp. 61
168 Civil Code, Article 863

41
the new government, concerned about the removal of the distinction between private law
and public law regime.169
As quoted above, in the current legislation, the Constitution regulates the possibility of
expropriation for public utility, but there several others legal provisions that provide the
preconditions, the manner of compensation and the cathegoryassets susceptible of
expropriation. To begin with the common law170: “expropriation can be made only for the
public interest established by law and with a fair and prior compensation, fixed by
agreement between the owner and expropriator. In case the agreement fails on the amount
of compensation, it will be judicially determined .”Law no. 33/1994 regarding expropriation
for public utility and Law no.255/2010 regarding expropriation for public utility, necessary
for objectives of national interest, county and local level, with subsequent amendments,
represent the legal framework in this matter.

The term can be defined, according to the dictionary,as
“taking possession of, especially for public use by the right of eminentdomain, thus divesting
the title of the private owner .”171 From a judicial opinion it can be defined as an“act of
public power through which the forced acquisition of private ownership of the buildings
needed for the execution of public utility works, in return for compensation ”, implying a
qualitative transformation of the property , from private to public.172

From a historical perspective, it is worth mentioning that in 1995 was adopted Law no.112,
which represented an important regulation in the matter of restitution of property, its
provisions being applicable in case of expropriation by the state without title. The lack of
title wasn ’t presumed, in opposition with the General Restitution Law no. 10/2001 that

169 Vasilica Negrut, The Legal Regime of Expropriation in Romania , (Juridica, AUDJ, vol. 10, no. 2/2014,)
pp. 5
170 Civil Code, Article 562
171 According http://www.dictionary.com/browse/expropriation
172 Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Curs de drept civil.Drepturi reale
principale , op.cit, pp.62

42
presumed the abusive take over of the state given the determined period from the legal text
(between 6 March 1945 – 22 December 1989).173

According to Law 1/2000 on reconstitution of the property right over agricultural and forest
land claimed in keeping with the provisions of Law on land resources No. 18/1991 and Law
No. 169/1997174 : “the reconstitution of property right for the natural persons mentioned
inart. 9 para (1)175 under Law on land resources No. 18/1991 republished, for the difference
between the area of 10 hectares per family and that brought into the agricultural production
co-operative or taken over in whatever way by the latter, but not more than 50 hectares per
dispossessed owner, shall be made integrally in the localities in which agricultural land is
available, constituted as reserve at the disposal of the commission, as per art. 18 of the
same law. ”

Another restitution law it is The General Restitution Law 10/2001, that allow former owners
of property that suffered an expropriation during the former regime to claim their lands or
buildings back, or to receive a fair compensation of it. However, after coming into force the
claimants had a period of time in which they were obliged to proceed to their request, that
was prolonged up to February 2002.176 The law refers exclusively to the expropriations that
took place with respecting the rule of law that regulated back then the state ’s right to
transfer in its possession the private property, in one world: that took place abusively.

173 Nicoleta Ciocea, Restitution issues in Romania twenty years on, pp. 3, Grigorescu Lawyers 2015, last
accessed April 2, 2017, available at http://shoahlegacy.org/wp-content/upload s/2014/07/romania.pdf
174 Law 1/2000 on reconstitution of the property right over agricultur al and forest land claimed in keeping
with the provisions of Law on land resources No. 18/1991 and La w No. 169/1997, Romania, article 3(1)
175According to article 9(1) under Law on land resources No. 18/1991 r epublished :The persons that were
reconstituted the property right within the limit of 10 ha of land per f amily, in arable equivalent, may
request the reconstitution of the property right also for the differen ce between that area and the one that
they have brought in the agricultural production cooperative or that has been taken over in any form by it,
up to the limit of area stipulated in art. 3 let. h) in Law No. 187/1945 f or the carrying out of the land
reform, per family, irrespective whether the reconstitution is to be made in several localities or from
different authors.
176 CMS Lawyers, The property regime in Romania, 2004, last accessed April 5, 2017, available at
http://www.cms-lawnow.com/ealerts/2004/02/the-property-regime- in-romania?cc_lang=en

43
According to article 1, that exposes the scope and the forms of reparative measures that can
be taken:

“(1) The properties abusively taken over by the state, by the cooperative organizations or by
any other juristic persons during March 6, 1945 – December 22, 1989, as well as those
taken over by the state on the basis of the Law No. 139/1940 on requisitions and not
restored, shall be restored, as a rule, in kind, under the terms of the present law.
(2) In the cases in which the restoration in kind is not possible, reparative measures through
an equivalent shall be established. The reparative measures through an equivalent shall
consist of compensation with other goods or services offered as an equivalent by the holder,
with the agreement of the entitled person, of granting shares in trading companies
transacted on the capital market, of face value securities used exclusively in the
privatization process, or of pecuniary compensation.
(3) The reparative measures through an equivalent can be combined. ”177
However, a lot of derogatory circumstances are provided for in order to cover the cases of
destroyed property, of property affected by subsequent public utility works or falling within
the assets of the privatized companies178. The possibility instituted by these regulations put
some companies headquarters in danger and uncertainty until a final decision by the
Commission of Law 10/2001 will be taken.179 Besides that, in most of the cases the
restitution in nature wasn ’t possible or convenient, therefore most of the reimbursements
consists in money from public funds, or goods and services from the national authorities.180

177 Law no 10/2001 on the legal regime of certain properties abusively ta ken over during the period March
6, 1945 – December 22, 1989
178 Nicoleta Ciocea, Restitution issues in Romania twenty years on , pp 1, Grugorescu Lawyers, available at
http://shoahlegacy.org/wp-content/uploads/2014/07/romania.pdf
179 Ibidem, pp. 115
180 Nicoleta Ciocea, Restitution issues in Romania twenty years on , op.cit, pp. 2

44
The restitution laws led to a percentage of 90% of the total land available in Romania to be
privately owned.181After 1990, has been registered an increase into the real estate operations
in our country, therefore the legislation needed to be adapted to the customer ’s real needs.

Summarizing, the current procedure through which expropriation can be in accordance with
law, involves three steps: the declaration of public utility, preparatory measures and the
judicial phase, composed of expropriation itself and the operations made in order to
establish compensation.182 If these procedures aren ’t followed in accordance with the
regulations, a breach of the law occurs and the state will be sanctioned. For example, in ca se
Vergu vs. Romania183 it was concluded that achieving works without starting the
expropriation procedure stipulated by law, without transferingthe right to ownership in
state’s heritage, in the absence of a fair and prior compensation to the owner of the
expropriated building (which was converted irreversible) constitutes a violation of property
rights provided by Art. 1 of Protocol No. 1 ECHR.

Worth mentioning it is the fact that these regulations comply with the requirements of
international law184, being adopted in compliance with article 1 of Protocol no. 1, additional
to the European Convention on Human Rights, according to which “Every physical or legal
entity is entitled to a peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the case of public utility and under the conditions provided for by law
and by the general principles of international law. ”185

Last but not least, worth mentioning it is the fact that, according to article 554 from our
Civil Code: “If not otherwise stipulated, the applicable law applies to private property and
public property rights, but only to the extent that they are compatible with the latter ”.186A

181 CMS Lawyers, The property regime in Romania, 2004, last accessed April 8, 2017
182 Law no. 33/1994
183 Vergu c. Romaniei, 11 ianuarie 2011, summary by Gabriel Boroi, Carla Ale xandra Anghelescu, Bogdan
Nazat, Curs de dreptcivil.Drepturi reale principale , op.cit, pp.64
184 Vasilica Negrut, The Legal Regime of Expropriation in Romania , op.cit, pp.7
185 Art. 1 of Protocol No. 1 European Convention on Human Rights
186 Civil Code, article 554

45
good application of this regulation it is referring to the limits of exercise of the right to
property. Article 862 187 from the Civil Code provides that the right to public property it is
susceptible of any limit established by the law, as long as they are compatible with the
public interest.
An interesting case in which I participated as a conventional representative for the claimant
had as an object the refusal of the city hall to offer compensation in case of an abusive
nationalization made by the state during 1945. Basically, even law no.10/2001 protects The
properties abusively taken over by the state, by the cooperative organizations or by any
other juristic persons during March 6, 1945 – December 22, 1989188and protects the victims
of such abuses by offering a fair compensation to the extent that the property cannot be
returned in nature, the local authorities have vehemently refused to adopt such a conduct. In
this context, we have addressed a claim to the Court of First Instance, who found that the
claimants have a genuine right, that the property is identical and identified by the sale-
purchase contract which dates back to 1945. Due to the fact that the proof of the right to
property has been made, the Court decided that the claimants are entitled to a fair
compensatory measure for their deprivation of right. Also, the Court highlighted that there
has to be a balance between the public interest and the imperatives of safeguarding the
fundamental rights of a person, therefore, in order to respect the proportionality and the
principles resulting from the Convention, the state has the obligation to pay damages under
the special law to our client.

V.2.2.Private property

According to our common law189 “Private property holder has the right to possess, use and
dispose of property exclusively, absolute and perpetual, within the limits set by law ”, being
susceptible of dismemberments, contrary to the public property.

187 Civil Code, article 862
188 Article 1, Law no 10/2001 on the legal regime of certain properties abusively taken over during the
period March 6, 1945 – December 22, 1989*
189 Civil Code, article 555

46
Analyzing the three characters of private property we can conclude that although it is legally
protected and its exercise it is guaranteed through judicial instruments, it can suffer from
certain limitations. Some of them are expressly stipulated in the law and others are generally
mentioned, remaining to be interpreted from the case, as I will expose in the following
subchapter.

V.2.2.1.Characters of the right to private property.
V.2.2.1.1.Absoluteness

There isn ’t a single point of view in terms of explaining the absoluteness of ownership.
Sometimes it looks like this character is targeting the enforceability ergaomnes of
ownership, meaning that other law subjects are obliged to respect the rights of the owner.
Other times, the feature of being absolute it is explained by the fact that this right is
unlimited, unrestricted in content, but the wording “within the limits established by
law"190may lead to a contrary interpretation. Others affirm that the absolute nature of
ownership means that the rightholder may exercise its right alone, without the need for
participation of another subject of law191. However, most authors explain this trait of the
right properties by comparison with these types of real rights, as it is the only one that meets
all three powers- possesion, use and disposal. 192

V.2.2.1.2. Exclusiveness.

As the word itself defines the term, the owner it is the only subject entitled to exercise its
right without anyone else (who, in turn, have the negative obligation not to do anything
likely to affect the holder's peaceful possession). As I have already mentioned, several
limitations can be encountered into the body of the Civil Code. For example, the

190 Civil Code, art.555
191 Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Curs de dreptcivil.Drepturirealeprincipale,
op.cit, pp 20
192 Ibidem, pp 21

47
dismemberments of the right193, the good faith possession of certain goods194, or the right
to access established by article 617 which stipulates that the fund owner who lacks access to
public path has the right to allow the passage of his neighbor trough its fund in order to
have the possibility of exploiting its own one.195

V.2.2.1.3.Perpetuality.

This character denotes on one hand, that the property right is unlimited in time and would
not perish from the holder by simply not using it, but will last as long as there the object of
property lasts. However, for example, in case of expropriation the right to property may
suffer from changes regarding its nature or content.196

V.2.2.2.Subject, Object, Content.

It was shown that defining the concept of ownership by highlighting the attributes granted to
its owner (possession, use and disposal) cannot illustrate its content of socio-economical
right, therefore becomes necessary to indicate also the manner of exercising those attributes.
197. The scenario where a person (other than the owner) has the opportunity to exercise the
attributes of ownership, in virtue of a right derived from ownership or a legal obligation, it is
permitted in the Romanian Law. 198However, unlike other subjective rightholders of the
same property, the owner exercising the attributes of legal property right, does it in
itsstrength and own interest. This means that the owner it is obeyed only to the law.199
Worth mentioning when talking about its complex content, are the restrictions imposed by

193 Civil Code, article 693 and the following
194 Civil Code, article 948
195 Civil Code, article 617
196 Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Curs de drept civil.Drepturi reale
principale, op.cit, pp.22
197 Ibidem, pp.23
198Ibidem, pp. 24
199 Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Curs de drept civil.Drepturi reale
principale, op.cit, pp 15

48
the law.200 Some of them are negative obligations that devolve to the owner, such the limits
imposed for the minimum distance between constructions or trees201, the view over the
neighbor's property202. Others are limits that give other people the exercise or some of the
required elements in order to exercise attributes of the right to property.203

Literally interpreting the legal text according to which any person, legal entity of private law
public law, including state and administrative teritorial units may be holders of the right of
ownership ,204 it follows that virtually any subject of civil law can have this quality. Similar
provisions that recognize the state's administrative units ’ right to have private property are
found also into Law no.18/1991, Law no.213/1998 on public property and its juridical
regime and Law no. 215/2001 on public local administration.

Regarding the object of the private property, the same article stipulates that all assets which
are used for private purposes can be a potential object of the right to property. Thus, any
movable or immovable good can be the object of private property in our country, except the
ones which, due to their nature or other quality can only form the exclusive object of public
property and are not susceptible of appropriation.

V.2.3.Defending the right to property in Romania. How to apply to the European
Court of Human Rights?

Applications are only admissible after the applicant has exhausted domestic legal remedies.
The applicant must have availed himself without success of all legal possibilities to have his
right acknowledged which were available to him on a national level. It depends on the
circumstances of the case at hand which avenues the applicant has to pursue on state level
before turning to the European Court of Human Rights. It is a matter frequently in dispute

200 Ibidem, pp. 26
201 Civil Code, art. 612 and art.613
202 Civil Code, art. 614 and art. 615
203 For example, art. 717 and the following from the Civil Code
204 Civil Code, art. 553

49
before the European Court of Human Rights whether applicants have satisfied this
requirement. Applicants should therefore consult a lawyer before lodging their application.
As a rule of thumb: An application is not possible yet if the applicant can still appeal against
the domestic judgment or decision.205

Worth mentioning it is the fact that there is a time limit of 6 months to lodge an application to
the Court, starting with the date of the final decision received in the domestic law which the
applicant considers it unlawful and breaches the regulation of the European Convention of
Human Rights. Basically, the role of the Court related to observing whether the states that
signed the Convention, which obliged to respect the letter of the Convention kept their bond
or not. Beside, the moral satisfaction the applicant achieve in case of a favorable judgement,
he can also obtain compensations for the damage caused by the violation of the Convention.206
As much as the procedure it is concerned, the applicant should draft its application in the two
official languages – English and French, by registered letter . So, a very important aspect to
bear in mind is the deadline by which you can file such an application, which runs from the
date of final settlement of the internal procedure ruling and is exhausted on the last day of the
sixth month.207 It has been stated that this rule has the aim to support legal certainty and
ensure that those cases which raise issues concerning the Convention, are examined within a
timeframe, while at the same time avoiding the scenario in which the authorities and others
are involved in a state of uncertainty for a long period of time. The rule of 6 months is a rule
of public policy, which the Court can apply ex officio, even if the Government did not invoke
it.208
According to the official guide regarding the application to the ECHR 209, the majority of
applications are not even examined on their merits due to the fact that their do not meet in the

205 According to The rules of the Court, last accessed 20 April, 2017, http ://echr-online.info/faq/#When can
I lodge
206 Ibidem, pp.2
207 Article 35, paragraph 1of the European Convention on Human Righ ts
208 Sabri Gunes vs. Turkey, application no. 27396/06, paragraph 40, last accessed May 1, 2017, available
at http://hudoc.echr.coe.int/fre#{"itemid":["001-111950"]}
209How to apply and how your application is processed , last accessed May 28, 2017,
http://www.echr.coe.int/Documents/Your_Application_ENG.pdf

50
first place the requirements for admissibility.210 The first step that has to be taken is to
examine the aspects of form. Rule no. 47 from the Rules of Court211 document regarding the
“Contents of an individual application ” specifies that it “shall contain all of the information
requested in the relevant parts of the application form and set out ” 212 the Applicant ’s
identification data, domicile and also :
(e) a concise and legible statement of the facts;
(f) a concise and legible statement of the alleged violation(s) of the Convention and the
relevant arguments;
(g) a concise and legible statement confirming the applicant ’s compliance with the
admissibility criteria laid down in Article 35 § 1 of the Convention.213

The most important notes, especially the ones cited above, should be included into the
application and also should be described in a precise manner such that the court might
conclude the aim and the nature of the application without any further documents. This
doesn ’t mean that the applicant can ’t supply the provided documents throughout time as long
as they can be used as evidence214 , and presented in a clear chronological order to facilitate
the identification of the issue and the manner the events unfolded, so that all procedural acts
can be identified individually and correctly. According to paragraph 5.1, if the applicant fails
to accomplish with the imperative requirements, the Court will not even proceed to examine
the paper, except the situation in which person who applies provides a pertinent explanation,
demands an interim measure, or the Court decides otherwise ex officio.215 As far as the
procesual quality it is concerned, as I have already mentioned216 legal persons may also apply

210 Your application to the ECHR: “ How to apply and how your application is processed ”, guide prepared
by the Court’s Public Relations Unit, pp.1, last accessed May 28, 2017, available at
http://www.echr.coe.int/Documents/Your_Application_ENG.pdf
211 Rule no. 47 from the Rules of Court, last accessed April 26, 20 17, available at
http://www.echr.coe.int/Documents/Rule_47_ENG.pdf
212 Ibidem
213 Ibidem, pp. 1
214 Ibidem, pp.1, para 1.2 letter b
215 Ibidem, para 5.1
216 See above chapter “Holder of the Right to Property”

51
to ECHR though their representatives, but in this case the relevant documents which attest this
qual ity of legal representative have to be presented as well.217
Moreover, the application form must be accompanied by the relevant documents
(a) relating to the decisions or measures complained of;
(b) showing that the applicant has complied with the exhaustion of available domestic
remedies and the time-limit contained in Article 35 § 1 of the Convention;
(c) showing, where applicable, information regarding other international proceedings.218

By examining Article 35 of the Convention219, we can notice that one of the admissibility
conditions specified by these provisions regarding the formulation of an application envisages
the exhaustion of all internal legal remedies before addressing to the court.220 As far as
Romania it is concerned, a person can lodge an application only after adressing to the First
Court of Justice, followed by the Court of Law, and the High Court of Cassation and Justice.
(These institutions may differ according to the court which ruled the case in the first place, so
that there is a possibility that the High Court of Cassation and Justice may not necessarily be
thecourt of appeal). 221

The logic of the rule on exhausting domestic remedies lays in the fact that by giving to the
national courts the opportunity to prevent or correct the interferences, the claims addressed to
the Court regarding violations of the Convention will trie. This is based on the hypothesis,
reflected in art. 13, that order of internal legal system will provide an effective remedy against
violations of certain rights Convention.222

217 Rules of Court, Institution of proceeding, Individual applications under Article 34 of the Convention, 19
September 2016, Paragraph 8, last accessed, May 1, 2017, available at
http://www.echr.coe.int/Documents/PD_institution_proceedings_ENG.pdf
218 Ibidem, paragraph 8
219 Article 35, European Convention on Human Rights
220 Article 35, paragraph 1of the European Convention on Human Righ ts
221 Romanian Code of Civil Procedure
222 Ghid Practic cu Privire la Conditiile de Admisibilitate , European Court of Human Rights, paragraph 65,
last accessed May 1, 2017, available at http://www.echr.coe.int/Documents/Admissibilit y_guide_RON.pdf

52
Moreover, it is important to mention that, if it ’s anonymous, or refers to a problem that has
been already analyzed by the Court, or makes the subject of an other investigation in front of
the international courts and no other new essential issues are revealed, the application will be
rejected.223 Another situation that might happen and lead to the inadmissibility of the
application is the abuse of right, or the discordance with the provisions of the Convention,
hypotheses in which, without investigating the point in question the application will be
declared inadmissible.224

According to the guide225,an application does not generally meet the requirements of art. 35,
when it has the same factual base as another previous application. It has been concluded that it
can not be said that a plaintiff presents new facts, when it confines itself to invoking the old
heads of claim by new legal arguments 226 or to provide complementary information on
domestic law, which are not likely to modify the reasons for the rejection of its previous
application.
For the examination of a claim that relates to the facts identically to those which stay at the
origin of an earlier application, the applicant must submit indeed a new head of the application
or new information that has not yet been analyzed by the Court.227 The purpose of the second
sentence of art. 35 § 2 lit. B228, which refers to the criterias of inadmissibility, is to avoid the
situation in which international courts rule simultaneously on essentially identical requests,
what they would be incompatible with the spirit and purpose of the Convention, which seeks
to avoid the multitude of procedures the same causes.229

223 Ibidem, Article 35, paragraph 2
224 Ibidem, Article 35, paragraph 3
225 Ghid Practic cu Privire la Conditiile de Admisibilitate, op.cit, para 137
226 I.J.L. Against the United Kingdom (dec.), Mann v. The United Kingdo m and Portugal (dec.)], in
GhidPractic cu Privire la Conditiile de Admisibilitate , op.cit, para 138
227 Panayiotis Agapiou Panayi KAFKARISagainst Cyprus, para 68, last accessed May 1, 2017, available at
http://hudoc.echr.coe.int/fre#{"itemid":["001-105438"]}
228 Article 34, paragraph 2, lit. B, entitled “Admissibility Criteria”
229 Ghid Practic cu Privire la Conditiile de Admisibilitate, op.cit, para 139, see OAO Neftyanaya
Kompaniya Y ukos against Russia, para 520; Eğitimve Bilim Emekçileri Sendikası against Tur key, para 37

53
As mentioned above, the application will be declared by the Court inadmissible if the demand
is abusive. The meaning of this term refers to exercising a right to for other purposes than
those for which it is intended in the lawIn a prejudicial manner. Consequently, it is abusive to
behave as a complainant, who is manifestly contrary to the vocation of the right of appeal
established by the Convention and constituting an obstacle to the proper functioning of the
Court or the proper conduct of the proceedings before it. This institution it is also recognized
in our legislation in the Civil Code as a principle of exercising your right with good faith
230No right can be exercised for the purpose of harming or harming another, or in an
excessive and unreasonable manner contrary to good faith. On the other hand, article 1353
from the same Code stipulates that The person who causes damage by virtue of the exercise of
his rights is not obliged to repair him unless he is abusively exercised231. For example, in the
jurisprudence of the Court have been declared abusice the applications registred under a false
identity232, reiterating many previous cases in the motivation part regarding the same issue :
“28. The Court is forced to conclude on the facts available that an attempt has been made
to pass the applicant off under a false identity. It further finds that the applicant persists in
refusing to reveal her true identity.
29. The Court reiterates that an application may be rejected as abusive under Article 35 §
3 of the Convention, among other reasons, if it was knowingly based on untrue facts ”.

A noteworthy national case it is the one regarding Beniamin Jian vs. Romania233, when a
precedent was created. Basically , it was the first time in history when ECHR rejected an
application regarding the abuse of right234 . Basically the applicant cited the ill- treatment and
the torture suffered in prison and transmitted as evidence in this respect a false medical act.

230 Romanian Civil Code, article 15
231 Ibidem, article 1353
232Tjitske DRIJFHOUT v. The Netherlands, application no.51721/09, last accessed Ma y 13, 2017,
available at http://hudoc.echr.coe.int/eng#{"dmdocnumber":["882481"],"itemid":["0 01-103813"]}
233Beniamin Jian vs. Romania, last accessed May 13, 2017, available on
http://hudoc.echr.coe.int/eng#{"dmdocnumber":["682766"],"itemid":["001- 44853"]}
234 According to Bogdan Aurescu, interview available on http://www.curieruln ational.ro/Eveniment/2004-
04-10/Criminalul+in+serie+Beniamin+s-a+plans+la+CEDO

54
Also, it is there is an abuse of the right of appeal if the applicant uses, in its correspondence
with the European court, particularly offensive, threatening or impertinent language – either
against the respondent government, its agent, the authorities of the respondent State, the Court
itself, its judges, its Registry or a its agents.235The Commission notes that in the observations
filed by theapplicant in response to the Government's observations the applicanthas made a
series of allegations of criminal and dishonest conduct inlanguage which is both insulting and
abusive against the respondentGovernment and, more particularly, the Government's Agent.
There is noevidence whatever to support the allegations made and nothing towarrant the
language used, which in the Commission's view is wholly without justification. In this
connection the Commission recalls thatthe persistent use of insulting or provocative language
by an applicantmay be considered an abuse of the right of petition.236 The Commission
considers that this is the case with the presentapplication. The application must be, therefore,
rejected as an abuseof the right of petition in accordance with Article 27 para. 2(Art. 27-2) of
the Convention. For these reasons, the Commission, unanimously, declares the remainder of
the application inadmissible.237

However, the applicant has the obligation to bring evidence to the Court with reference to the
damage that has been caused. According to Article 35, paragraph 3 The Court shall declare
inadmissible any individual application submitted under Article 34 if it considers that:
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights
as defined in the Convention and the Protocols thereto requires an examination of the
application on the merits and provided that no case may be rejected on this ground which has
not been duly considered by a domestic tribunal238. This notion leads to the idea that a
violation of a right, no matter how real it is from a purely legal point of view, it must reach a
minimum level of gravity to justify its examination by an international court. Breaches of a
pure nature, technical and minor importance outside a formal framework does not require

235 Ghid Practic cu Privire la Conditiile de Admisibilitate, op.cit, para 154
236 Nicholas STAMOULAKATOS v. The United Kingdom, application no. 27567/ 95, last accessed May
13, 2017, available at http://hudoc.echr.coe.int/eng#{"itemid":["001-3593"]}
237 Ibidem, last paragraph
238 Ibidem

55
European control.239 As an example we can present Giuran against Romania case 240 where
the Court considered that the applicant suffered material injury on the ground that the
procedure represented for him an aspect of principle, namely the right to respect its goods and
domicile. Even the internal procedure that was the object of the application had the purpose
of recovering stolen goods from the applicant's home, valued items approximatevely 350
EUR241 :
Inspired by the general principle de minimis non curat praetor, this admissibility criterion
hinges on the idea that a violation of a right, however real from a purely legal point of view,
should attain a minimum level of severity to warrant consideration by an international court.
The assessment of this minimum level is, in the nature of things, relative, and depends on all
the circumstances of the case. The severity of a violation should be assessed taking into
account both the applicant ’s subjective perceptions and what is objectively at stake in a
particular case (see Korolev, cited above). In other words, the absence of any significant
disadvantage can be based on criteria such as the financial impact of the matter in dispute or
the importance of the case for the applicant. 242 Under these circumstances, the Court didn ’t
considered that the applicant have suffered a disadvantage in a proportion that is attributable
to the admissibility of his application.
The Court notes that the admissibility criterion set forth in Article 35 § 3 (b) of the
Convention is applicable only when the applicant has suffered no significant disadvantage
and provided that the two safeguard clauses contained in the same provision are respected. It
follows that where it has not been determined that the applicant has suffered no significant
disadvantage, this admissibility criterion does not apply.243

Once the Court found, in the approach outlined above, the lack of important damage, it must
verify whether one of the two safeguard clauses set out in Art.35 § lit. B) compels it, however,

239 Ghid Practic cu Privire la Conditiile de Admisibilitate, op.cit, para 411
240Giuran against Romania, Application no. 24360/04 , last accessed May 13, 2017, available at
http://hudoc.echr.coe.int/fre#{"languageisocode":["ENG"],"appno":["24360/04" ],"documentcollectionid2":
["CHAMBER"],"itemid":["001-105269"]}
241 Ghid Practic cu Privire la Conditiile de Admisibilitate, op.cit, para 412
242 Giuran against Romania, Application no. 24360/044, 2011, paragraph 20
243Ibidem, paragraph 24

56
to examine the merits of the complain : if in order to respect human rights an analyze of the
application have to be done, or we do have the situation in which that case has not been
properly examined by a intern court. This clause also harmonises with the subsidiarity
principle mentioned in Art. 13 of the Convention,244 which requires to the national remedies
the availability of an effective remedy against infringements245.

The procedure itself, assuming that the first “check phase ” has been exceeded, it isn ’t very
different from our domestic one. If the case reaches before a Chamber/ Grand Chamber, a
High Contracting Party one of whose nationals is an applicant shall have the right to submit
written comments and to take part in hearing246. The rules regarding the hearings are similar
to the ones encountered in Romania, characterized by publicity, adversarial principles, the
right of access to the case file, except the situation in which the Courts decide eitherwise. The
final judgement belongs to the Grand Chamber, or, as the case may to a Chamber. According
to Article 44247The judgment of a Chamber shall become final :
(a) when the parties declare that they will not request that the case be referred to the Grand
Chamber; or
b) three months after the date of the judgment, if reference of the case to the Grand Chamber
has not been requested; or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43.2484

244 Convention on European Human Rights , article 13: Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective remedy before a national autho rity notwithstanding
that the violation has been committed by persons acting in an official capacity
245 Ghid Practic cu Privire la Conditiile de Admisibilitate, op.cit, pp.5
246 European Convention on Human Rights, Article 36, paragraph 1
247 European Convention on Human Rights, Article 44, paragraph 2
248 European Convention on Human Rights, Article 43: Within a period of three months from the date of the
judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred
to the Grand Chamber.
2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question
affecting the interpretation or application of the Convention or the Protocols thereto , or a serious issue of
general importance.
3. If the panel accepts the request, the Grand Chamber shall decide the case by means o f a judgment.

57
In the following I will present some of the most interesting cases that have reached to the
European Court of Human Rights in which Romania was part and have been solved in a
favorable manner for the applicant, cases that also serve as a “reference ” to the court.249

V.3. Relevant cases for Romania
One of the most relevant cases from the European Court of Human Rights jurisprudence it
is the case of Brumărescu v. Romania250. The applicant it is a Romanian citizen, born in
1926 who addressed a complaint due to the fact that in 1950 under Decree no. 92/1950 his
parent ’s house was nationalized without any compensation. The Bucharest Court of first
instance have decided that this procedure didn ’t respect the law ’s requests, therefore it
concluded that “the nationalisation of the applicant ’s parents ’ house under Decree no.
92/1950 had been a mistake, as his parents had belonged to a category of persons whose
property the decree exempted from nationalization ”251. Moreover, was decided that State
could not have acquired title to the house under Decree no. 218/1960 or Decree no.
712/1966 since those instruments had been contrary to the Constitutions of 1952 and 1965
respectively. The court therefore ordered the administrative authorities – namely the mayor
of Bucharest and a State-owned company, C., which managed State-owned housing – to
return the house to the applicant252. This resolution became final and irreversibile, therefore
the applicant occupied the house and started paying the housing related taxes.253

After several years, the General Procurator of Romania introduced an extraordinary wa y of
appeal, claiming that the Bucharest Court of First instance exceeded its powers by declaring
the non-compliance of the measures taken.Analyzing the dispute and the requirements
established by Article 1 Protocol 1, the Court concluded that the applicant owned a

249 I tend to affirm this, due to the fact that I have seen many references to the cases, as I will present in the
following
250 Case of Brumărescu v. Romania no. 28342/95, Judgment of 28 October 1999 , last accessed May 13,
2017, available at https://www.juridice.ro/wp-content/uploads/2014/10/HOT%C4%82R%C3%8 2REA.pdf
251 Ibidem, para 15
252 Ibidem, para 22
253 Ibidem, para 16

58
“possession ” in the sense provided by the text. Regarding the interference, it was stated that
“the consequence of the quashing of the judgment of 9 December 1993 was to make it
absolutely impossible for him to assert his right of property, something which amounted to
interference with his right to peaceful enjoyment of his possessions .”254

The next relevant issue concerned whether the interference was justified or not. Given the
circumstances, The Court recalls that in determining whether there has been a deprivation
of possessions within the second “rule”, it is necessary not only to consider whether there
has been a formal taking or expropriation of property but to look behind the appearances
and investigate the realities of the situation complained of. Since the Convention is intended
to guarantee rights that are “practical and effective ”, it has to be ascertained whether the
situation amounted to a de facto expropriation.255 Reiterating the preconditions established
by Article 1 Protocol 1, lawfulness and the general interest should be examined, together
with proportionality, which although it isn ’t espressly mentioned it has to be taken into
consideration.256 In its judgement the Court has recalled the Sporrong and Lönnroth
judgment, where the concept of “fair balance ” between “the demands of the general interest
of the community and the requirements of the protection of the individual ’s fundamental
rights, the search for such a fair balance being inherent in the whole of the Convention .”257

Thus, due to the fact that “neither the Supreme Court of Justice itself nor the Government
have sought to justify the deprivation of property on substantive grounds as being in the
public interest ” and taking into consideration the fact that the deprivation of ownership of
property lasted “for more than four years without being paid compensation reflecting its
true value, and that his efforts to recover ownership have to date proved unsuccessful In
these circumstances, even assuming that the taking could be shown to serve some public
interest, the Court finds that a fair balance was upset and that the applicant bore and

254 Ibidem, para 71
255 Ibidem, para 76
256See the above chapter no.III.2.1.1.3
257 Ibidem, para 78

59
continues to bear an individual and excessive burden. There has accordingly been and
continues to be a violation of Article 1 of Protocol No. 1. ”258

In conclusion, the Court unanimously decided that the applicant ’s right protectected by
Article 1 P1 and Article 6 (1) from the Convention have been ignored:
“1. Holds that there has been a violation of Article 6 § 1 of the Convention by reason of the
lack of a fair hearing;
2. Holds that there has been a violation of Article 6 § 1 of the Convention by reason of the
refusal of the right of access to a court;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 ”.259, the
compensatory measures consisting in the restitution of the entire property, and in case this
measure fails, the state should pay to the applicant a total amount of 136.205 USD and
15.000 USD for the moral damages.260

Another case of violation of Article 1 Protocol 1 and Article 6 § 1 of the Convention can be
encountered into the case of Vasilescu c. Romania261which concernsthe retention of
valuables unlawfully seized by the miliția in 1966 and lack of a tribunal that could order
their return.262

The circumstances of the case refer to the applicant ’s situation, MrsElisabetaVasilescu,
whose husband was investigated for unlawful ppossession of gold,a breach of the past
legislation (Decree no.210/1960). Under the warrant from Arges police263 they confiscated
327 coins of gold, later being deposited at the National Bank of Romania, Arges branch.
Although the authorities decided not to press charges against her husband, the confiscated

258 Ibidem, para 80
259 Ibidem, pp.22, final judgement
260According to the summary presented by https://www.juridice.ro/wp-
content/uploads/2014/10/HOT%C4%82R%C3%82REA.pdf
261Vasilescu v. Romania, 22 mai/May 1998, last accessed May 13, 2017, availab le at
http://www.hotararicedo.ro/index.php/article_access/view_article/89
262 Vasilescu v. Romania, 22 May 1998, ECHR reports of Judgements an d Decision.
263 The judgements refers to miliția, the equivalent of police institution nowadays

60
assets weren ’t refunded.In order to obtain the restitution of the goods, the applicant first
addressed a claim in this sense to the Procurator General of Romania, but he claimed that
“no seizure order or search warrant had been issued in respect of her or her husband,
either in 1966 or thereafter ”.264 As a natural consequence of this response, she intented a
trial having as object the recovery of possession under the legal rationale which was won in
court based on the evidence adduced during the trial.
Draining all the ordinary ways of appeal our national law permitted back then, on 10
February 1995 she applied to the Commission, claiming a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1265, being deprived of her right to regain the
possession of the family ’s assets. By evaluating the circumstances of the case, the Court
noted that the Procurator ’s answer was accurate, that the search of the house indeed had no
legal basis and “the loss of all ability to dispose of the property in issue, taken together with
the failure of the attempts made so far to have the situation remedied by the national
authorities and courts, has entailed sufficiently serious consequences for it to be held that
the applicant has been the victim of a de facto confiscation incompatible with her right to
the peaceful enjoyment of her possessions .”266

The conclusion of the Court it is similar to the one in the case of Brumarescu c. Romaniei :
“1. Dismisses the Government ’s preliminary objection;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there is a violation of Article 1 of Protocol No. 1; \
4. Holds that it is unnecessary to examine the complaints under Articles 8 and 13 of the
Convention. ”267, forcing the state to pay a total amount of 95,185 French francs included
material, moral damages and the costs and expenses.268

264 Vasilescu v. Romania , 22 May 1998, para 12
265 Ibidem, para. 28
266 Ibidem, para 55
267 Vasilescu v. Romania, 22 mai/May 1998, ECHR reports of Judgements and Decisions, pp.12
268 Ibidem, final paragraph

61
Another leading case 269 it is the case of Strain and others v. Romania270 having as object the
de facto expropriation of a house during the communist era in our country.In order to
recover their possession, the applicants addressed a claim in the Arad Court of First Instance
against Arad Town Council271 within the motivation that they belonged to a special
cathegory of persons that Article 2 of Decree no. 92/1950272 which where excluded from the
expropriation. Although this Court agreed that they were the owners of the house and the
nationalization is unlawful, they could ’t obtain the reimbursement of the property due to the
fact that it was already sold and the buyers were of good faith.273

The applicants claimed that274 : the impugned deprivation had resulted from the sale by the
State of flat no. 3, of which they claimed possession and in respect of which proceedings had
been pending at the time of the sale. Under Law no. 112/1995, on the basis of which the sale
had been agreed, the State was only entitled to sell property it had acquired legally. As the
proceedings brought by the applicants had resulted in a declaration that the nationalisation
had been unlawful, their title to the flat had accordingly been acknowledged, with
retrospective effect. Given that at the time of the sale the applicants had already brought an
action against the State, asserting that the nationalisation had been unlawful, and that the
existmence of the proceedings was indicated in the land register, the sale could not have
been lawful. Moreover, they invoked in their defense the fact that the ohersflate from the
immobiledue to pending claims in the courts. 275Taking into consideration their defenses, the
Court established that there have been occurred a nationalization of property without having

269 According to Christophe Golay, IoanaCismas, The Right To Property From a Human Rights
Perspective ,op.cit, pp.15
270 Strain and others v. Romania, Application no. 57001/00 , 21 July 2005, last accessed May 19, 2017,
available at http://hudoc.echr.coe.int/eng#{"itemid":["001-69787"]}
271 The Arad Court of First Instance against Arad Town Council Resolution, par a 6
272 Article 2 of Decree no. 92/1950: “ The immovable property of workers, civil servants, small artisans,
persons working in intellectual professions and retired persons shall be exclud ed from the scope of this
Decree and shall not be nationalized .”
273 Ibidem, para 13
274 Ibidem, para 34
275 Ibidem, para 35

62
a legal basis, they indeed are the owners of the debated property and the interference
occurred.: “By selling one of the flats in the building to a third party before the question of
the lawfulness of the nationalisation had been finally settled by the courts, the State
deprived the applicants of any possibility for recovering possession ”276.
Furthermore, the legislation in force at that time lack in clarity and the element of
uncertainty in the law and the wide discretion of it do not comply with the precise
requirements of Article 1 Protocol 1. The Governement failed to provide a sustainable
justification for the interference, the measure of nationalization being in this unproportional
and the fair balance between the demands of the general interest of the community and the
requirements of the protection of the individual's fundamental rights 277. In consequence, the
Court decided there have been a violation of Article 1 Protocol 1, forcing the state to pay to
the applicants a total amount of 86600 EURO.

276 Ibidem, para 39
277 Sporrong and Lönnroth, described in para above in Case Of Strain and oth ers v.Romania, para. 51

63
VI. Conclusions.
In the context of the above, it is unquestionably important to legally regulate the property
rights as thoroughly as possible, offering as many legal guarantees and means of protection
to it. Among the economists and policy makers the interdependence of the success of a
country and property rights is obvious, because by giving the opportunity to prosper and use
resources to the people as they appreciate and see fit, can basically leads to capitalizing
resources in an effective manner. The process of weighing costs and benefits produces what
economists call efficient outcomes. That translates into higher standards of living for all.278I
have presented in this paper the manners of approaching a potential issue regarding the right
to property in the context of national law and in so far as the solution is not satisfactory and
all internal remedies have been exhausted, how to address to the European Court of Human
Rights. I have developed the essential requirements the that must be fulfilled for the
application to be taken into account, as well as the majority of the relevant cases in the
court ’s jurisprudence which either created a precedent in the context of the interpretations
given tp the law or are considered to be the basis for the development of causality for
ownership. Also, with the purpose of emphasizing the important role the right to property
has (especially the private one) in our society, I have reviewed the legal texts offering
protection to the right.

In its evolution, the right to property has represented the benchmark in the fight for freedom
and equality, being included in the category of the rights which can assure an income
contributing directly to the standard of living, and related to the right to work, which
assures the obtaining of some revenues for an adequate standard of living.279

278 Gerald P. O’Driscoll Jr. and Lee Hoskins , Property Rights: The Key to Economic Development , August 2003, last
accessed on May 19, 2017, available on https://www. libertarianism.org/publications/essays/property-rig hts-key-economic-
development
279 Gabriel Micu, Human Rights Course, op.cit, pp. 80

64
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