Article One of the First Protocol to the European Convention on Human Rights: the evolution of a right in Europe and the United Kingdom

K Law (General)

McCarthy, Frankie ; Rennie, Robert

University:University of Glasgow

Department:School of Law

关键词: Property law, human rights;   

Others  :  http://theses.gla.ac.uk/2153/1/2010mccarthyphd.pdf.pdf

来源: University of Glasgow

【 摘 要 】

Article one of the First Protocol to the European Convention on Human Rights (“P1-1”) states that every person is entitled to peaceful enjoyment of his possessions. The role of property interests in allowing political participation had been highlighted during the Second World War, where the Third Reich had weakened political opponents through arbitrary deprivation of possessions. The drafters of the Convention sough to prevent a repeat of this political abuse. However, the political element of property is often secondary to its economic role, in which intervention by the state is necessary and sometimes desirable to allow a national economy to function. How can this inherent conflict in the right to peaceful enjoyment of possessions be resolved? This thesis aims to demonstrate the development of the role of the property right in Europe and the United Kingdom through a critical analysis of the jurisprudence of the European Court of Human Rights and the domestic courts of the United Kingdom. The central thesis of this research is that, although a framework has been determined within which P1-1 decisions can be taken, there is considerable work to be done in strengthening the parameters of that framework in order to create a protection that, whilst sufficiently flexible to deal with changes in law and society, offers a clearly defined and meaningful safeguard against unnecessary intervention by the state in every context. The conclusion is that a clear decision-making process has been articulated through the European jurisprudence and subsequently adopted with qualified success in the United Kingdom. This process allows for the P1-1 implications of current and foreseeable events to be explored with some degree of certainty. However, the margin of appreciation afforded to states by the judiciary at certain steps of the process, particularly as regards the purported aim of state intervention and the necessity of avoiding payment of compensation in certain situations, compromises the strength of the protection as a whole.