Condensed: Expropriation relates to the act of the state taking private property for public use or in the public interest. No one should be (a) arbitrarily deprived of his or her property (b) and no deprivation should take place without adequate compensation. Expropriation is considered to be arbitrary where it is not based on rules of domestic law that are sufficiently accessible, precise and foreseeable. Expropriation of property should be pursued when strictly necessary and in a non-discriminatory manner. Adequate compensation should be paid as well as effective remedy to challenge any decision relating to the compulsory acquisition of property. Comprehensive: Expropriation relates to the act of the state taking private property purportedly for public use or in the public interest. No one should be (a) arbitrarily deprived of his or her property (b) and no deprivation should take place without compensation. International human rights instruments provide for the expropriation of property in a variety of formulations, as a limitation to the right to property, as permitted in the public interest, for social interest and when it is done in accordance to law.[1] The prohibition against arbitrary expropriation of property is protected in the UDHR and other international instruments.[2] The occupation of property without a formal transfer of ownership may be deemed to be de facto expropriation. For example, in a case where under a law, a military government took possession of private land and established a naval base and holiday resort for officers and their families, the ECtHR ruled this as constituting de facto expropriation since the applicants were unable to make use of their property or to sell, bequeath, mortgage or make a gift of it.[3] This situation can be compared with one where although expropriation permits and prohibitions on construction had been issued, with the effect of making the applicants right of property precarious and capable of being defeated the ECtHR did not consider the situation one of de facto expropriation because possession had not been formally taken.[4] Expropriation is considered to be arbitrary where it is not based on rules of domestic law that are sufficiently accessible, precise and foreseeable.[5] The ECtHR requires that any interference with the peaceful enjoyment of possessions must be in the public interest, subject to the conditions provided by law and by general principles of international law and must strike a fair balance (proportionality) between the fundamental rights of the individual and the general interests of the community.[6] The ‘public interest’ does not necessarily require that acquired property must be put to use for the general public or a particular community. The taking of property with a view to ensuring social justice within a community would qualify as ‘public interest’ even if the property was transferred from one individual to another.[7] The Court allows states a wide margin of appreciation in determining what constitutes the public interest, recognizing that the notion of ‘public interest’ is extensive and usually involving the consideration of political, economic and social issues.[8] Similarly according to the IACtHR deprivation of property is compatible with the ACHR where such deprivation is based on reasons of public utility or social interests, is subject to the payment of just compensation and is done according to law.[9] Expropriation of property should be pursued when strictly necessary and in a non-discriminatory manner, ensuring consultation with concerned communities, eg in the case of indigenous groups, in order to secure their informed consent.[10] Adequate compensation should be paid for the compulsory acquisition of property. According to the ECtHR:[11] 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 Article 1 (P1-1) [peaceful enjoyment of possessions] does not, however, guarantee a right to full compensation in all circumstances. 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. The value of compensation is also affected by circumstances such as unreasonable delay in payment of compensation. In Akkus v Turkey, the ECtHR found a violation of the right to peaceful enjoyment of possessions where a deferment of seventeen months in the payment of compensation was deemed to render that compensation inadequate.[12] Any compulsory acquisition of property should be subject to effective judicial control.[13]
[1] Eg ACHPR art 14: ‘The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws’; ACHR art 21(2): ‘No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law’.
[2] UDHR art 17(2); ACHPR art 14; ECHR Protocol 1 art 1; ACHR art 21(2); Arab Charter art 31; CERD art 5(d)(v);
[3]Papamichalopoulos and Others v Greece application 14556/89 (ECtHR 1993) paras 42-45.
[4]Sporrong and Lönnroth v Sweden application 7151/75, 7152/75 (ECtHR 1982) para 60.
[5]Belvedere Alberghiera v Italy application 31524/96 (ECtHR 2000) para 57.
Expropriation relates to the act of the state taking private property for public use or in the public interest. No one should be (a) arbitrarily deprived of his or her property (b) and no deprivation should take place without adequate compensation. Expropriation is considered to be arbitrary where it is not based on rules of domestic law that are sufficiently accessible, precise and foreseeable. Expropriation of property should be pursued when strictly necessary and in a non-discriminatory manner. Adequate compensation should be paid as well as effective remedy to challenge any decision relating to the compulsory acquisition of property.
Comprehensive:
Expropriation relates to the act of the state taking private property purportedly for public use or in the public interest. No one should be (a) arbitrarily deprived of his or her property (b) and no deprivation should take place without compensation. International human rights instruments provide for the expropriation of property in a variety of formulations, as a limitation to the right to property, as permitted in the public interest, for social interest and when it is done in accordance to law. [1] The prohibition against arbitrary expropriation of property is protected in the UDHR and other international instruments.[2]
The occupation of property without a formal transfer of ownership may be deemed to be de facto expropriation. For example, in a case where under a law, a military government took possession of private land and established a naval base and holiday resort for officers and their families, the ECtHR ruled this as constituting de facto expropriation since the applicants were unable to make use of their property or to sell, bequeath, mortgage or make a gift of it.[3] This situation can be compared with one where although expropriation permits and prohibitions on construction had been issued, with the effect of making the applicants right of property precarious and capable of being defeated the ECtHR did not consider the situation one of de facto expropriation because possession had not been formally taken.[4]
Expropriation is considered to be arbitrary where it is not based on rules of domestic law that are sufficiently accessible, precise and foreseeable.[5] The ECtHR requires that any interference with the peaceful enjoyment of possessions must be in the public interest, subject to the conditions provided by law and by general principles of international law and must strike a fair balance (proportionality) between the fundamental rights of the individual and the general interests of the community.[6] The ‘public interest’ does not necessarily require that acquired property must be put to use for the general public or a particular community. The taking of property with a view to ensuring social justice within a community would qualify as ‘public interest’ even if the property was transferred from one individual to another.[7] The Court allows states a wide margin of appreciation in determining what constitutes the public interest, recognizing that the notion of ‘public interest’ is extensive and usually involving the consideration of political, economic and social issues.[8] Similarly according to the IACtHR deprivation of property is compatible with the ACHR where such deprivation is based on reasons of public utility or social interests, is subject to the payment of just compensation and is done according to law.[9]
Expropriation of property should be pursued when strictly necessary and in a non-discriminatory manner, ensuring consultation with concerned communities, eg in the case of indigenous groups, in order to secure their informed consent.[10]
Adequate compensation should be paid for the compulsory acquisition of property. According to the ECtHR: [11]
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 Article 1 (P1-1) [peaceful enjoyment of possessions] does not, however, guarantee a right to full compensation in all circumstances. 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.
The value of compensation is also affected by circumstances such as unreasonable delay in payment of compensation. In Akkus v Turkey, the ECtHR found a violation of the right to peaceful enjoyment of possessions where a deferment of seventeen months in the payment of compensation was deemed to render that compensation inadequate.[12]
Any compulsory acquisition of property should be subject to effective judicial control.[13]
[1] Eg ACHPR art 14: ‘The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws’; ACHR art 21(2): ‘No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law’.
[2] UDHR art 17(2); ACHPR art 14; ECHR Protocol 1 art 1; ACHR art 21(2); Arab Charter art 31; CERD art 5(d)(v);
[3] Papamichalopoulos and Others v Greece application 14556/89 (ECtHR 1993) paras 42-45.
[4] Sporrong and Lönnroth v Sweden application 7151/75, 7152/75 (ECtHR 1982) para 60.
[5] Belvedere Alberghiera v Italy application 31524/96 (ECtHR 2000) para 57.
[6] Sporrong and Lonnroth v Sweden para 69.
[7] James and others v UK application 8793/79 (ECtHR 1986) para 41.
[8] James and others v UK para 46.
[9] Ivcher Bronstein v Peru Series C no 74 (IACtHR 2001).
[10] CERD, Concluding Observations: Guyana, CERD/C/GUY/CO/14 (2006) para 17.
[11] James and others v UK para 54.
[12] Akkus v Turkey application 19263/92 (ECtHR 1997) para 31.
[13] Hentrich v France application 13616/88 (ECtHR 1994).