Article 1 of Protocol 1 to the European Convention on Human Rights (ECHR) guarantees the right to the peaceful enjoyment of possessions. It is a right often cited in Malta in cases having to do with protected old leases.
This right is not absolute, and it can be restricted for reasons of public interest. However, courts have stated that the restrictions must be proportionate to the legitimate aim pursued.
The scope of the right to the peaceful enjoyment of possessions is broad and encompasses a wide range of interests, including ownership of property, the right to use and enjoy property, the right to rent or lease property, the right to transfer property, and the right to be compensated for expropriation of property.
The right to the peaceful enjoyment of possessions can however be restricted on a number of grounds, including:
In the general interest
To secure the payment of taxes, other contributions or penalties
In order to forfeit property the acquisition of which has resulted from a criminal offence or of property which has been used in the commission of a criminal offence
To prevent infringement of the rights and freedoms of others
To control the use of property in accordance with the general interest
To secure compliance with laws which regulate the use of property.
It is important to note that these grounds are not exhaustive, and the ECtHR has held that the right to the peaceful enjoyment of possessions can also be restricted for other reasons of public interest. Therefore, for instances, in some cases, the taking of one's property (under certain conditions) to use it to give housing to someone in need has in the past been considered as having achieved such proportionality. In time, the view evolved, and for example, it has recently been decided time and time again that old Maltese leases (under Cap. 69 and Cap 158) fail to achieve this balance, and are this in breach of Article 1 of Protocol 1.
When restricting the right to the peaceful enjoyment of possessions, the government must ensure that the restriction is proportionate to the legitimate aim pursued. This means that the restrictions must be necessary to achieve the aim, and they must not be excessive.
The ECtHR's approach to proportionality in Article 1 of Protocol 1 to the ECHR has been criticized by some scholars who argue that the Court has been too inconsistent and has failed to develop clear and consistent criteria for assessing the proportionality of restrictions on property rights.
Others have defended the ECtHR's approach, arguing that the Court has struck a fair balance between the need to protect the right to the peaceful enjoyment of possessions and the need to allow governments to interfere with property rights for legitimate reasons.
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Dr Carlos Bugeja is a Partner at PROLEGAL Advocates.
Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja at carlos@prolegal.mt.