Protection of property rights under the European Convention on Human Rights and the Russian national legislation

Abstract: The importance of property in everyday life of people is obvious. Although sometimes it looks like property does not fit into the human rights context, the author believes that the right to property as any other human right needs protection. The fact that 20 percent of all violations found by the European Court of Human Rights in the last eight years are connected with property rights illustrates the importance of property rights. This thesis evaluates and compares property rights protection under the European Convention on Human Rights and Russian national legislation. The thesis consists of three main parts. The first Chapter looks into the international model of the protection of property rights. After mentioning the main international instruments containing protection of the right to property, the thesis is focused on the protection model under the European Convention on Human Rights. The history of the property clause is looked into. Article 1 of Protocol №&semic 1 of the European Convention on Human Rights is examined in detail. In order to understand the property rights clause, the basic case-law of the European Court of Human Rights and the European Commission of Human Rights are covered. First, the author illustrates the concept of property rights, by giving numerous examples of rights which fall under the protection of Article 1 of Protocol №&semic 1. Second, the content of property rights is explained and the description of three main rules, deprivation of property, control of the use of property and the peaceful enjoyment of possession are given. Since the right of property is not absolute and is subject to restriction, the author examines under which conditions interference with property rights is justified. According to the case-law of the Strasbourg bodies, interference with property rights by a state is allowed only if three conditions - lawfulness, public and general interest and proportionality - are fulfilled cumulatively. At the end of Chapter I, the connection between the right to property and the right to a fair trail is touched upon. After the description of the European standards, the thesis shifts into the Russian national framework of property rights protection. The domestic legislation is explained and analyzed and problems in the legislation are pointed out. The author starts the Chapter with important historical remarks about the country and with the relevant constitutional provisions concerning property rights protection. After explaining the concept of property in the domestic system, the thesis examines the content of property rights. According to the Russian model, everybody have the right to own, to possess, to use and to dispose of property. However, these rights are not absolute, they are subject to limitations&semic a person can even be deprived of property. Under the Russian law, confiscation, nationalization, requisition and expropriation are the main forms of deprivation of property. After pointing out the existing problems with all of these forms of deprivation of property the thesis turns to the question of justification of the deprivation of property. In Russia, as a post-communist country, a lot of problems with property rights over land exist, the most relevant of them are touched upon in this thesis. At the end of Chapter II, the system of the domestic judicial protection of property rights by the Constitutional Court of the Russian Federation and by the ordinary federal courts is illustrated. The last Chapter represents the analysis between the European and the Russian models of property rights protection. It starts with statistical information about the number of property rights violations found by the European Court of Human Rights in general and against the Russian Federation in particular. Differences in the concept of property rights and justifications for the interference with property rights are pointed out. The author makes an analysis of the case-law with the Russian Federation as a respondent state and concludes that the majority of the cases against Russia concern non-enforcement of court decisions and violation of property rights by the way of supervisory review. The author mentions the reasons for this situation with property rights in Russia and suggests some possibilities of solving the existing problems. Chapter 3.7 of the thesis covers the questions about the necessity to apply the case-law of the European Court of Human Rights in the Russian Federation, the problems and the positive practice of this application. At the end of the thesis, the author makes some concluding remarks about existing problems with property rights protection in Russia and gives some recommendations.