July 17, 2013
Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons. Firstly, a right to property takes the present distribution of wealth across society for granted, and requires justification for redistributive state action. Thereby it does not question the mechanisms that distribute wealth among individuals, despite the fact that it is clear that maldistribution can both cause or result from human rights violations. By protecting the status quo, the right to property can undermine the transformative potential of human rights. Secondly, and related, those who have the most property obviously have a larger claim to property protection, disproportionately empowering the most advantaged vis-à-vis the least advantaged. Thirdly, upholding the right to property itself can amount to violations of human rights. Slavery is of course the most shocking example, but also think of how intellectual property rights restrict access to medicines affecting the right to health, or how the right to property can be mobilized to restrict access to fora for social action, affecting the freedom of expression. Fourthly, the right to property does not by itself distinguish between the kinds of property it protects, thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht. While it is clear how the former relates to foundational principles of human rights such as human dignity, in the latter case the link seems non-existent. Why should human rights at all care about the millionaire’s yacht?
Should we then do away with the human right to property? Perhaps that’s stretching my fundamental unease with the right to property too far. Surely no one would want to go back to the days of communist Europe. The question thus remains how the right to property can be transformed in such a way as to relate better to what we as human rights lawyers care about. The recent judgment in the case of N.K.M v. Hungary (see Ingrid’s blog post here) and R.Sz. v. Hungary may indicate the way forward.
The Hungarian cases
Both cases principally concern the same issue: the imposition of a 98 % tax on the upper bracket of the severance payment for dismissed civil servants (in the case of N.K.M.) or employees working for state-owned companies (in the case of R.Sz.). In both cases, the Court found a violation of Article 1 Protocol 1, holding that
“(…) the measure complained of entailed an excessive and individual burden on the applicant’s side. This is all the more evident when considering the fact that the measure targeted only a certain group of individuals, who were apparently singled out as having been paid, directly or indirectly, out of the public purse. Assuming that the impugned measure served the interest of the State budget at a time of economic hardship, the Court notes that the majority of citizens were not obliged to contribute, to a comparable extent, to the public burden.“
On the basis of this alone, the Court could have found a violation of Article 1 Protocol 1. More interesting however, the judgments show a tendency of the Court to look beyond the mere property dimension of the case, and to take into account the context of social protection against unemployment. This is illustrated by the Court referring to Article 34 of the EU Charter of Fundamental Rights:
“As regards the personal burden which the applicant sustained on account of the impugned measure, the Court notes that he had to suffer a substantial deprivation of income in a period of presumable considerable personal difficulty, namely subsequent to the loss of employment. The Court would observe in this context that Article 34 of the Charter of Fundamental Rights of the European Union (…) endorses benefits providing protection in the case of loss of employment, and that according to the European Court of Justice, the aim pursued by severance pay – that is, helping dismissed employees find new employment – belongs within legitimate employment policy goals (…).”
The Court further held that the measure
“(…) affected the applicant being in good-faith standing and deprived him of the larger part of an acquired right (statutorily guaranteed to a large extent), serving the special social interest of labour-market reintegration.”
Instrumentalizing the right to property
While the latter two paragraphs can easily be considered as mere obiter dicta, the Court did put its finger on why we should care more about this case from a human rights perspective than about the millionaire’s yacht: because the case does not simply concern property, it also concerns the social right of protection against the risk of loss of employment. The right to property can actually be considered to be instrumental for the protection of the social right involved. The prioritization of the protection of the right to property in cases where this is instrumental for the protection of other human rights could clearly be a step towards an Article 1 Protocol 1 jurisprudence that fits better with most people’s conception of what human rights should be about.
My proposal to transform the human right to property however is more radical and goes as follows. Forget about the intrinsic value of the right to property: what we should care about from a human rights perspective is not just money or the worth of goods, but how this affects the capability of individuals to effectively enjoy their human rights, both civil and political as social and economic ones. The right to property should therefore be transformed in a purely instrumental right: property would then only be protected under the European Convention insofar as it can be linked to the enjoyment of another human right. In these cases the link is obvious: the right to protection against the risk of loss of employment. It is easy to imagine some other obvious candidates that can in some cases be instrumentally protected through the right to property: the right to housing, the right to an adequate standard of living or the right to social benefits. Other examples could be the instrumental protection of the freedom of religion, freedom of association or freedom of expression, in cases in which the property of for example minority religions, social movements or political dissidents are targeted. What obviously shouldn’t be protected by human rights law are the wealth and luxuries of the Rockefellers of these worlds. These persons are wealthy and powerful enough to protect their interests through the political process anyway, without needing additional empowerment through human rights law.
Of course, moving from an all-encompassing right to property to an instrumental right would mean a radical change in the Court’s jurisprudence. Clearly, taking this route would first require further reflection to fully grasp the full consequences of such a radical move. A more modest version of the transformative project would be for the Court to further incrementally prioritize property protection in the case of instrumental effects, and to incrementally decrease property protection in the absence of such effects. In this respect, the Court’s approach in the Hungarian cases is clearly an applaudable step in the right direction.