The Essence of the Right to Property under Art 1 of Protocol 1 to the echr: An Inviolable Core or a Purely Symbolic Concept? Cases from Central and Eastern Europe revisited

Abstract It is inherent to the fundamental right to property that far from being absolute, the owners’ rights may be limited in the general interest. As exemplified recently by unprecedented closures of restaurants and other businesses due to the covid -19 pandemic, also large-scale and far-reaching limitations are broadly deemed justified. The outer boundary of these limitations appears to be the essence of the right, which may not be impinged upon. Yet, both this very term and its scope are fiercely contested. This article, thus, revisits the “essence” of a fundamental right in the context of the European Convention on Human Rights. Drawing on the example of the right to property under Art 1 of Protocol 1 (P1-1) to the echr , this contribution expounds the prevailing approaches to the essence of fundamental rights and highlights the discrepancies between the formally adopted absolute approach to the essence as a purportedly inviolable core and the relative understanding of this concept which sees it as part of the fair-balance test. As the ECtHR case law makes room for virtually any interference with P1-1 including expropriation without any compensation, it will be argued that an untouchable or pre-established essence is not a concept attributable to the right to property under the Convention. It is maintained, however, that the limited scope of the essence is consistent with the underlying principles of the Convention as well as the intrinsic social function of private property.