Semi-process-based review under Article 1 of P1

The AGOSI v United Kingdom case is one of the early cases where the Court attached some weight to the procedural aspect of the right to property. In this case, administrative authorities seized gold coins, which the applicant illegally imported into the United Kingdom.⁴⁵ The Court argued that, ‘although the second paragraph of Article 1 of P1 contains no explicit procedural requirements [it must consider whether the applicable domestic procedures] afforded the applicant company a reasonable opportunity of putting its case to the responsible authorities. In ascertaining whether these conditions were satisfied, a comprehensive view must be taken of the applicable procedures.’⁴⁶

The applicant contended that a purely administrative procedure was insufficient, because a judicial remedy was necessary to protect the innocent owner for the purposes

42 Spano (n 2) 486.

43 ibid 487.

44 Arnardóttir (n 28) 21.

45 AGOSI v UK App no 9118/80 (ECtHR, 24 October 1986), para 51.

46 ibid 55.

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of art 1 of P1. Even if such judicial review was available, its scope was insufficient to provide an effective remedy.⁴⁷ The Court ruled, referring to domestic case law, that the judicial review of the exercise of administrative discretion was available. Its scope was sufficient,⁴⁸ because it was open for national courts to examine whether the administrative authorities had given the owner opportunity to establish his lack of complicity, however the proportionality principle was excluded as a separate ground for review ⁴⁹

The decisive outcome of this case was to what extent the applicant company had been offered procedural guarantees under English law. In his dissenting opinion, Judge Thór Vilhjálmsson argued that insufficient procedural guarantees would entail the violation of art 6.1, because it clearly enunciated the right to fair trial, which art 1 of P1 did not expressly contain. He found the majority’s interpretation somewhat problematic and unnecessary.⁵⁰

In the Air Canada v United Kingdom case concerning the seizure of an aircraft, the Court found no reason to reach a different conclusion to AGOSI. In the dissenting opinion of Judge Martens joined by Judge Russo, he argued that confiscating property without examining any reasonable relationship between the behaviour of the owner and the breach of the law, was contrary to the rule of law and art 1 of P1. In his opinion, a sanction not allowing for the defence of innocent ownership upsets the fair balance between the protection of the right to property and the general interests.⁵¹

These early cases show that where proportionality was not a separate ground of review, judgements of domestic courts could have been contrary to art 6.1, but they did not breach the procedural requirements attached to property rights.⁵² As the case law developed, it has become possible to strengthen the autonomous procedural requirements of art 1 of P1, which appear to be almost as stringent as those under art 6.1.

In the Capital Bank v Bulgaria case, the Court argued that the first and most important requirement of art 1 of P1 is that any interference with the right to property should be lawful.⁵³ The concept of lawfulness and the rule of law require that the applicant has a ‘reasonable opportunity of presenting its case to the responsible authorities for the purpose of effectively⁵⁴ challenging the measures interfering its right’.⁵⁵ The Court admits that because art 1 of P1 does not contain explicit procedural

47 ibid para 57.

48 ibid para 59.

49 ibid para 60.

50 AGOSI v UK Dissenting Opinion of Judge Thór Vilhjálmsson.

51 Air Canada v UK Dissenting Opinion of Judge Martens, joined by Judge Russo, para 5.

52 Laurent Sermet, ‘The European Convention on Human Rights and Property Rights’ (1999) 11 Human Rights Files <https://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-11(1998).pdf> accessed 19 May 2021, 37.

53 Capital Bank AD v Bulgaria App no 49429/99 (ECtHR, 24 November 2005), para 132.

54 Emphasis added.

55 Capital Bank AD v Bulgaria (n 53) para 134., Druzstevni Zálozna Pria and others v the Czech Republic App no 72034/01 (ECtHR, 31 July 2008), para 89.

Process-based Review Under Article 1 of Protocol 1 of the European Convention of Human Rights i79 requirements, the absence of judicial review, in itself, would not amount to a violation

of that Article.⁵⁶ This matter has to be rather considered under art 6.1 of the Convention.⁵⁷ Instead, the Court must take a comprehensive view of the applicable judicial and administrative procedures in order to ascertain whether the procedural requirement has been satisfied.⁵⁸

The right to access to court may nevertheless come under the Court’s scrutiny if the absence of judicial review allegedly impairs the very essence of the right to property.⁵⁹ If the Court concludes that the interference with the applicant’s property right is unlawful, because it has not been surrounded by ‘sufficient guarantees against arbitrariness’, the Court will not ascertain whether the impairment strikes a fair balance between the applicant’s right to property and the demands of general interest.⁶⁰ In other words, the Court applies procedural requirements not to search for the right balance, but to provide a formal guideline, which the domestic law restricting human rights should follow.⁶¹

In a different line of cases, the Court does not differentiate between lawfulness and proportionality⁶² and features autonomous procedural considerations in ascertaining whether a fair balance has been struck. In this respect, the Court has ruled that art 1 of P1 includes an ‘expectation of reasonable consistency’ between interrelated, but separate decisions of national courts and authorities concerning the same property or ‘sufficient explanation’ for the lack thereof.⁶³ Furthermore, public authorities must act in good time, in an appropriate manner and with utmost consistency. Failing to comply with these requirements leads to uncertainty experienced by the applicant, which upsets the fair balance.⁶⁴

It is further submitted that the autonomous procedural guarantees of art 1 of P1 have been strengthened to such an extent that the dividing line between the right to property and the right to fair trial is blurred.

56 Capital Bank AD v Bulgaria (n 53) para 134., Druzstevni Zálozna Pria and others v the Czech Republic (n 55), para 89.

57 Capital Bank AD v Bulgaria (n 53) para 134., Fredin v Sweden (No. 1) App no 12033/86 (ECtHR, 18 February 1991), para 50.

58 Capital Bank AD v Bulgaria (n 53) para 134., Druzstevni Zálozna Pria and others v the Czech Republic (n 56), para 89.

59 Druzstevni Zálozna Pria and others v the Czech Republic (n 53) para 91.

60 Druzstevni Zálozna Pria and others v the Czech Republic (n 53) para 95., Iatridis v Greece App no 31107/96 (ECtHR, 25 March 1999), para 62.

61 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (OUP 2014) 118.

62 ibid 117.

63 Jokela v Finland App no 28856/95 (ECtHR, 21 May 2002), para 61., 65.

64 Beyeler v Italy App no 33202/96 (ECtHR, 5 January 2000), para 120–21, Megadat.com SRL v Moldova App no 21151/04 (ECtHR, 8 April 2008), para 71.; Kips Doo and Drekalovic v Montenegro App no 28766/06 (ECtHR, 26 June 2018), para 136.

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In some cases, the Court’s assessment under art 6.1 may absorb the analysis of art 1 of P1, which prevents the Court from fully engaging with the substantive issues, including the balancing exercise. The Court rather argues that States are under the obligation to offer procedural guarantees, which enable the domestic courts to adjudicate a dispute fairly and effectively.⁶⁵ Serious procedural shortcomings rendering the domestic proceeding unfair within the meaning of art 6.1 then automatically upsets the fair balance under art 1 of P1.⁶⁶ The scope of serious procedural shortcomings depends on the circumstances of the individual case, but may include: considerable differences in the application and interpretation of the domestic law between the various levels of the judiciary, repeated reopening of the flagrant violations of the res iudicata principle,⁶⁷ extraordinary proceeding instituted by a state official not party to the ordinary court proceeding.⁶⁸ In addition, a failure to enforce a final and binding judgement within a reasonable amount of time or a law drastically changing the business and legal environment without providing for judicial review⁶⁹ also place an excessive burden on the applicant within the meaning of art 1 of P1.⁷⁰

In another line of cases the Court attempted to clarify the scope of procedural requirements under art 1 of P1.⁷¹ In the Zagrebacka Banka v Croatia case, the Court argued that not each and every violation of art 6.1. leads automatically to a violation of the State’s procedural positive obligations in connection with the right to property. In fact, art 1 of P1 concerns the substance of the right of property and its breach cannot be determined solely in the light of the same criteria relevant for the right to fair trial.

In order to find a violation of art 1 of P1 it is necessary for the ‘procedural unfairness to have a direct impact’ on the applicant’s property rights.⁷² In other cases, the Court has stated that even if the domestic proceeding was conducted in an unfair manner within the meaning of art 6.1, the Court requires ‘exceptional circumstances’ to find a violation of the applicant’s right to property. ⁷³

65 Sovtransavto Holding v Ukraine App no 48553/99 (ECtHR, 25 July 2002), para 96.

66 Sovtransavto Holding v Ukraine (n 65) para. 97–98., Ivanova and Cherkezov v Bulgaria App no 46577/15 (ECtHR, 21 July 2016), para 22.

67 Sovtransavto Holding v Ukraine (n 65) para 154.

68 Ivanova v Ukraine App no 4104/01 (ECtHR, 13 September 2005), para 22., See also Agrotehservis v Ukraine App no 62608/00 (ECtHR 5 July 2005) para 46.; SC Maşinexportimport Industrial Group SA v. Romania App no 22687/03 (ECtHR 1 December 2005), paras 32 and 46–47.; Piaţa Bazar Dorobanţi SRL v. Romania App no 37513/03 (ECtHR, 4 October 2007), paras 23 and 33.

69 Könyv-tár Kft and Others v Hungary paras 49–50.; para 60., Beinarovic and others v Lithuania, App nos 70520/10, 21920/10 ,41876/11 (ECtHR, 12 June 2018).

70 Vartic and Others v Moldova App nos 12674/07, 13012/07, 13339/07, 13368/07 (ECtHR, 20 September 2011), para 23.; Panorama and Milicic v Bosnia Hercegovina App nos 69997/10 and 74793/11 (ECtHR 25 July 2017) para 74.

71 Zagrebacka Banka v Croatia App no 39544/05 (ECtHR, 12 December 2013), para 269; Agrokompleks v Ukraine App no 23465/03 (ECtHR, 25 July 2013), para 170.

72 Zagrebacka Banka v Croatia (n 71) para 269.

73 Industrial Financial Consortium Investment Metallurgical Union v Ukraine App no 10640/05 (ECtHR, 26 June 2018), paras 191 and 198.

Process-based Review Under Article 1 of Protocol 1 of the European Convention of Human Rights i81 Notwithstanding the Court’s attempts to differentiate between the procedural

requirements under art 6.1 and art 1 of P1, the terms direct impact of unfairness on the property rights and exceptional circumstances are subject to further interpretation, therefore the dividing line remains blurred.