Collective property through the lens of the case-law of the European court of human rights

Ćorić, Vesna and Knežević Bojović, Ana and Fernandez Jankov, Fernanda (2024) Collective property through the lens of the case-law of the European court of human rights. In: Common (and collective) property – a historical perspective : international scientific conference. Institute of Comparative Law, Belgrade, pp. 147-174. ISBN 978-86-82582-20-5

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Abstract

This paper aims to explore to what extent “property”, as an ECtHR autonomous concept, includes the collective dimensions of property rights, as well as to systematize different collective dimensions of the right to property as addressed in the ECtHR case law. The underlying hypothesis of the paper, which was confirmed by research, is that the ECtHR failed to sufficiently elaborate on the collective dimensions of the right to property due to the causes that are not linked to cultural relativist arguments but to the ECtHR general approach of giving deference in examining domestic law pertaining to all the aspects of the right of property under Article 1 of Protocol No. 1 to the ECHR. Firstly, the key standards for protecting the right to property as developed through the ECtHR caselaw will be briefly presented. After that, selected ECtHR case-law on the collective dimension of the propriety rights of indigenous peoples and the caselaw on the restitution afforded in cases of denationalization will be examined to assess whether they diverge from the general protection of the right to property afforded by the ECtHR. The normative-legal method to analyze the case law of the ECtHR in terms of the protection it afforded to collective dimensions of the property right will be predominantly utilized.

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