The most modern international legal instrument in the field of human rights in the European region is the Charter of Fundamental Rights of the European Union of 2009 (hereinafter – the EU Charter). By definition, the EU Charter applies exclusively to the EU member states, which currently number 27. Nevertheless, this international legal instrument is significant for the realities of Ukraine, given the European integration aspirations of our country as a candidate state for the EU and active negotiations on Ukraine's membership in the EU. In our opinion, it is extremely important to consider the formation of the right to property as a human right in the EU Charter, taking into account the amount of material damage caused by the Russian Federation as part of its full-scale armed invasion of Ukraine. Although it is not currently regulated by the EU Charter, as Ukraine is not yet a member of the “family” of member states, in case of EU membership, the provisions of the EU Charter will automatically apply to Ukraine as a legal instrument that is equivalent in legal force to the EU founding treaties.
The EU Charter regulates the right to property as a fundamental human right, not as a civil law category, which is inherent in national civil law. For example, part 1 of Article 17 of the EU Charter on property rights provides that “everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions” [1]. It is important that this provision details all three legal capacities that make up property rights as a civil law category, but through the prism of property rights as a human right. The right to bequeath one's property was also added, which is unusual for definitions in international human rights instruments relating to property rights.
Also, part 1 of Article 17 of the EU Charter provides that “no one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss” [1]. This provision is in fact similar to the provision of the European Convention on Human Rights, which also mentions the prohibition of unlawful deprivation of property and also mentions the public interest and conditions determined by law as possible grounds for such deprivation. However, notably, the EU Charter clearly states that property may be deprived only on condition of fair and timely compensation. Although the ECHR case law also implies the need for compensation, the ECHR itself does not explicitly state this. Therefore, the EU Charter provision is more advanced in this regard - which, in principle, can be explained by the fact that there is a 57-year gap in adoption between the ECHR and the EU Charter. Therefore, legal opinion had time to “mature” for a clearer formulation in the new European international legal instrument.
In our opinion, this is confirmed by the fact that the EU Charter also clearly states that property rights as a human right are protected only in relation to property that is legally acquired. Conversely, we can interpret that property acquired illegally does not fall under the protection of property rights as a human right under the EU Charter. We do not find a similar provision in the Universal Declaration of Human Rights [2] or the European Convention on Human Rights [3], etc.
It is also interesting that part 1 of Article 17 of the EU Charter states that “the use of property may be regulated by law in so far as is necessary for the general interest”. In our view, this provision is a more generalised version of the provision of the European Convention on Human Rights that the protection of property rights does not prohibit the state from introducing regulation to ensure the implementation of tax and other administrative policies. Nevertheless, the definition in the EU Charter is broader and is based on the “general interest”.
On the one hand, such a general definition allows such a provision to cover an indefinite range of regulations on the use of property as state policies evolve, which may be perceived positively. On the other hand, the reference to the general interest creates legal uncertainty and may give rise to abuse of power, as anything can be called a general interest and the use of property can be restricted through state regulation.
However, in the case of the EU Charter, which is equated with the EU founding treaties and is part of the EU legal order, there is always the possibility to apply to the Court of Justice of the European Union, which can assess whether or not the EU Charter provision is violated in a particular case. Therefore, such a generalised formulation still has a mechanism to counteract in case of abuse of the restriction on the use of property and property rights in general as one of the EU Charter rights. In addition, this provision can also be perceived as setting limits for state regulation, which means that the state cannot regulate the use of property more than required by the general interest.
Therefore, the regulation of property rights as a human right in the EU Charter can be considered the most progressive among international legal regional instruments. In particular, one of the most effective provisions is the rule that only property acquired through legal means is subject to protection. In addition, it clearly establishes that property rights as a human right are regulated through three legal capacities: possession, use, and disposal, which is not so defined in most international human rights instruments. It is also extremely important that the need for mandatory fair and timely compensation in the event of deprivation of property rights is clearly outlined. In addition, a positive aspect of the EU Charter's regulation is the possibility of applying to the Court of Justice of the European Union in case of ambiguous interpretation of tithes or other norms on property rights as a human right, which may harm specific rights of a particular person.
Література:
1. Charter of Fundamental Rights of the European Union. 2009. URL: https://ccl.org.ua/posts/2021/11/hartiya-osnovnyh-prav-yevropejskogo-soyuzu/
2. Universal Declaration of Human Rights. 1948. URL: https://zakon.rada.gov.ua/laws/show/995_015#Text
3. European Convention on Human Rights. 1950. URL: https://zakon.rada.gov.ua/laws/show/995_004#Text
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Науковий керівник: Мицик Всеволод Всеволодович, доктор юридичних наук, професор, Навчально-науковий інститут міжнародних відносин Київського національного університету імені Тараса Шевченка
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