Transforming the right to property

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.

Continue reading

N.K.M. v. Hungary: Heavy Tax Burden Makes Strasbourg Step In

This guest post was written by Ingrid Leijten, Ph.D. researcher and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law.

The debate on the future of the European Court of Human Rights is often phrased in terms of the individual justice/constitutional justice dichotomy. In the recent case of N.K.M. v. Hungary the tension between both aims once again becomes very clear. In this case the Court held that the property rights of the applicant, who was confronted with a 98% tax over a part of her severance payment, were unjustifiably interfered with. In order to argue why in this specific case individual relief was necessary, however, the Court came up with several arguments that seem to invite future (mis)use by applicants whose interests the Court is probably not willing to protect. Was the Court right in making an ‘exception’ for the individual at hand, or should the probable effects of a perceived change in the Court’s approach to tax issues have prevented it from doing so? Continue reading