Condensed: Confiscation is the taking of property by the State by way of penalty, for example depriving an offender of the proceeds or the profits of crime. Confiscation of property is considered illegal if it does not meet the requirements of (a) lawfulness and (b) proportionality. Thus confiscation procedure should not be arbitrary, selective, unforeseeable or subject to insufficient procedural safeguards. Proportionality requires that the confiscation should achieve a fair balance between the right to property and the public interest sought to be achieved by the taking of property. Illegal occupation of property may take place where people do not have access to adequate housing and in conflict situations where people have been involuntarily or illegally displaced or resettled. The State has the obligation to ensure access to adequate housing generally, and in particular, alternative shelter for the illegal occupiers, thus protecting against the violation of the right to property. Illegal destruction of property may arise from both State action and a State’s failure to act. States are required to refrain from actions that result in destruction of property as well as to take positive action to prevent the destruction of property. Comprehensive: Illegal confiscation of property Confiscation means the taking of property by the State by way of penalty, for example depriving an offender of the proceeds or the profits of crime.[1] Confiscation can include temporary restriction on the use of property without the actual transfer of ownership.[2] The difference between expropriation and confiscation is the motivation for the taking of property. (See *arbitrary expropriation of property*). Confiscation of property is considered illegal if it does not meet the requirements of lawfulness and proportionality. The ECtHR in Hentrich v France held that the taking of the applicant’s property by the state by means of a pre-emptive procedure because the state considered the purchase price to be below market values, constituted an interference with the right to peaceful enjoyment of property.[3] The Court noted that the pre-emptive procedure did not take account of the purchaser’s good faith or lack of it, but did not find it necessary to decide whether the right of pre-emption could legitimately be used to regulate the property market.[4] Nevertheless, the Court found that in the applicant’s case, the procedure had operated arbitrarily, selectively, was not foreseeable and was not accompanied by procedural safeguards such as adversarial proceedings that would facilitate equality of arms.[5] The requirement of proportionality was not met because the state was allowed to exercise the right without having to provide reasons for its decision; the procedure was not applied systematically and the state had at its disposal other means to achieve the desired objective. In particular, the purchaser of property under this procedure suffered the loss of property for the purpose of deterring others even where the property was acquired without fraudulent intent.[6] The ACHPR found the sealing of the premises of two magazines and frequent seizure of copies of magazines critical of the state to be a violation of the right to property.[7] The ACHPR held that ‘the decrees which enabled these premises to be sealed and for publications to be seized cannot be said to be “appropriate” or in the interest of the public of the community in general’.[8] Illegal occupation of property Illegal occupation of property may take place where homeless people attempt to access shelter on private property. Illegal occupation of property may also take place in conflict situations where people have been involuntarily or illegally displaced or resettled. See (*forced displacement*). In some cases, states have adopted abandonment legislation which facilitates occupation of property by displaced populations, but this may be implemented in a discriminatory manner, against a section of the population eg a particular ethnic group.[9] Such was the practice in states like Croatia and Bosnia and Herzegovina during the conflict period.[10] Secondary occupation of property is common during displacement and arises where displaced individuals who have fled their homes move into abandoned homes or where the occupiers forcibly evict residents, loot property and move into the abandoned homes.[11] (See *forced evictions*). Although the owner is entitled to recover possession of property that is illegally occupied, the right to respect for one’s home will require that recovery is through judicial proceedings and takes account of the need to find alternative housing.[12]. Illegal destruction of property In Akdivar and others v Turkey the ECtHR found that the applicants’ right to peaceful enjoyment of possessions had been violated by the state where security officers were responsible for the destruction of the applicants’ houses and property.[13] The illegal destruction of property may also arise from a state’s failure to act. The ECtHR has found a violation of the right to peaceful enjoyment of property in Oneryildiz v Turkey where destruction of property resulted from the state’s failure to act, a positive obligation.[14] The applicant lived adjacent to a rubbish tip that presented a health hazard, which the state was under an obligation to prevent. A methane gas explosion from the rubbish tip caused a landslide that buried the applicant’s dwelling and possessions. The ECtHR found that the state had not met the positive obligations arising from article 1 Protocol 1 to take practical steps to prevent the destruction of the applicant’s property.[15]
[1] See Stroud’s Judicial Dictionary of Words and Phrases.
[2]Air Canada v UK application 9/1994/456/537 (ECtHR 1995) para 33.
[3]Hentrich v France application 13616/88 (ECtHR 1994) para 50. See also Belvedere Alberghiera v Italy, application 31524/96 (ECtHR 2000).
[7]Media Rights Agenda and others v Nigeria (2000) AHRLR 200 (ACHPR 1998) paras 1, 77.
[8]Media Rights Agenda and others v Nigeria para 77.
[9] UN Sub-Commission on the promotion and protection of human rights, Preliminary report of the Special Rapporteur, Paulo Sérgio Pinheiro, ‘Housing and property restitution in the context of the return of refugees and internally displaced persons’ E/CN.4/Sub.2/2003/11 (2003) paras 17, 21,
[11] UN Sub-Commission on the promotion and protection of human rights, Preliminary report of the Special Rapporteur, Paulo Sérgio Pinheiro, ‘Housing and property restitution in the context of the return of refugees and internally displaced persons’ E/CN.4/Sub.2/2003/11 (2003) para 45.
[12]Chapman v United Kingdom application 27238/95 (ECtHR 2001).
[13]Akdivar & others v Turkey application 99/1995/605/693 (ECtHR 1996) para 88. See also Isayeva, Yusupova & Bazayeva v Russia applications 57947/00, 57948/00 and 57949/00 (ECtHR 2005) paras 230-234.
[14]Oneryildiz v Turkey, Application 48939/99 (ECtHR 2004).
Confiscation is the taking of property by the State by way of penalty, for example depriving an offender of the proceeds or the profits of crime.
Confiscation of property is considered illegal if it does not meet the requirements of (a) lawfulness and (b) proportionality. Thus confiscation procedure should not be arbitrary, selective, unforeseeable or subject to insufficient procedural safeguards. Proportionality requires that the confiscation should achieve a fair balance between the right to property and the public interest sought to be achieved by the taking of property.
Illegal occupation of property may take place where people do not have access to adequate housing and in conflict situations where people have been involuntarily or illegally displaced or resettled. The State has the obligation to ensure access to adequate housing generally, and in particular, alternative shelter for the illegal occupiers, thus protecting against the violation of the right to property.
Illegal destruction of property may arise from both State action and a State’s failure to act. States are required to refrain from actions that result in destruction of property as well as to take positive action to prevent the destruction of property.
Comprehensive:
Illegal confiscation of property
Confiscation means the taking of property by the State by way of penalty, for example depriving an offender of the proceeds or the profits of crime.[1] Confiscation can include temporary restriction on the use of property without the actual transfer of ownership.[2] The difference between expropriation and confiscation is the motivation for the taking of property. (See *arbitrary expropriation of property*). Confiscation of property is considered illegal if it does not meet the requirements of lawfulness and proportionality.
The ECtHR in Hentrich v France held that the taking of the applicant’s property by the state by means of a pre-emptive procedure because the state considered the purchase price to be below market values, constituted an interference with the right to peaceful enjoyment of property.[3] The Court noted that the pre-emptive procedure did not take account of the purchaser’s good faith or lack of it, but did not find it necessary to decide whether the right of pre-emption could legitimately be used to regulate the property market.[4] Nevertheless, the Court found that in the applicant’s case, the procedure had operated arbitrarily, selectively, was not foreseeable and was not accompanied by procedural safeguards such as adversarial proceedings that would facilitate equality of arms.[5] The requirement of proportionality was not met because the state was allowed to exercise the right without having to provide reasons for its decision; the procedure was not applied systematically and the state had at its disposal other means to achieve the desired objective. In particular, the purchaser of property under this procedure suffered the loss of property for the purpose of deterring others even where the property was acquired without fraudulent intent.[6]
The ACHPR found the sealing of the premises of two magazines and frequent seizure of copies of magazines critical of the state to be a violation of the right to property.[7] The ACHPR held that ‘the decrees which enabled these premises to be sealed and for publications to be seized cannot be said to be “appropriate” or in the interest of the public of the community in general’.[8]
Illegal occupation of property
Illegal occupation of property may take place where homeless people attempt to access shelter on private property. Illegal occupation of property may also take place in conflict situations where people have been involuntarily or illegally displaced or resettled. See (*forced displacement*). In some cases, states have adopted abandonment legislation which facilitates occupation of property by displaced populations, but this may be implemented in a discriminatory manner, against a section of the population eg a particular ethnic group.[9] Such was the practice in states like Croatia and Bosnia and Herzegovina during the conflict period.[10] Secondary occupation of property is common during displacement and arises where displaced individuals who have fled their homes move into abandoned homes or where the occupiers forcibly evict residents, loot property and move into the abandoned homes.[11] (See *forced evictions*). Although the owner is entitled to recover possession of property that is illegally occupied, the right to respect for one’s home will require that recovery is through judicial proceedings and takes account of the need to find alternative housing.[12].
Illegal destruction of property
In Akdivar and others v Turkey the ECtHR found that the applicants’ right to peaceful enjoyment of possessions had been violated by the state where security officers were responsible for the destruction of the applicants’ houses and property.[13] The illegal destruction of property may also arise from a state’s failure to act. The ECtHR has found a violation of the right to peaceful enjoyment of property in Oneryildiz v Turkey where destruction of property resulted from the state’s failure to act, a positive obligation.[14] The applicant lived adjacent to a rubbish tip that presented a health hazard, which the state was under an obligation to prevent. A methane gas explosion from the rubbish tip caused a landslide that buried the applicant’s dwelling and possessions. The ECtHR found that the state had not met the positive obligations arising from article 1 Protocol 1 to take practical steps to prevent the destruction of the applicant’s property.[15]
[1] See Stroud’s Judicial Dictionary of Words and Phrases.
[2] Air Canada v UK application 9/1994/456/537 (ECtHR 1995) para 33.
[3] Hentrich v France application 13616/88 (ECtHR 1994) para 50. See also Belvedere Alberghiera v Italy, application 31524/96 (ECtHR 2000).
[4] Hentrich v France para 39
[5]Hentrich v France para 42.
[6] Hentrich v France paras 47-49.
[7] Media Rights Agenda and others v Nigeria (2000) AHRLR 200 (ACHPR 1998) paras 1, 77.
[8] Media Rights Agenda and others v Nigeria para 77.
[9] UN Sub-Commission on the promotion and protection of human rights, Preliminary report of the Special Rapporteur, Paulo Sérgio Pinheiro, ‘Housing and property restitution in the context of the return of refugees and internally displaced persons’ E/CN.4/Sub.2/2003/11 (2003) paras 17, 21,
[10] As above.
[11] UN Sub-Commission on the promotion and protection of human rights, Preliminary report of the Special Rapporteur, Paulo Sérgio Pinheiro, ‘Housing and property restitution in the context of the return of refugees and internally displaced persons’ E/CN.4/Sub.2/2003/11 (2003) para 45.
[12] Chapman v United Kingdom application 27238/95 (ECtHR 2001).
[13] Akdivar & others v Turkey application 99/1995/605/693 (ECtHR 1996) para 88. See also Isayeva, Yusupova & Bazayeva v Russia applications 57947/00, 57948/00 and 57949/00 (ECtHR 2005) paras 230-234.
[14] Oneryildiz v Turkey, Application 48939/99 (ECtHR 2004).
[15] Oneryildiz v Turkey paras 136-7