The Constitution and Possibilities to Impose Restrictions on the Property Right
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Abstract
The principle of the protection of property right is one of the guarantees of the rights and freedoms both of a state and persons belonging to its jurisdiction, therefore this principle was inevitably included into a list of rights and freedoms guaranteed by the Constitution of the Republic of Lithuania.
Already 10 years the Constitution of the Republic of Lithuania by the norms of Article 23, comprising indivisible complex, establishes three principle rules by which the State is obliged to guarantee the absolute inviolability and protection by the laws of a property right. The Constitutional Court several times ascertained that the principle of the inviolability of the ownership has to be implemented not in accordance with its grammatical meaning, but systematically interpreting the Constitution, for it cannot be implemented separately from the principles of respect of other human rights and freedoms and observance of laws. The influence of social philosophy also caused the refusal of the absolute protection of property right. Taking in to account the aforesaid tendencies, it is important to establish the possibilities of the interference with the property right, first of all, and legal basis, criteria and limits for the state to establish restrictions over the property right.
The Constitutional Court in its practice has listed only the principles of interference, however has not dealt at all with the conceptual basis, such as definition of a property right, its content, definition forms, which may in certain cases cause de facto expropriation, and other questions directly influencing the remedies of the protection of rights and freedoms of persons under Article 23 of the Constitution. Also the Constitutional Court has not comprehensively evaluated the influence of the international treaties over the protection of the property right still.
Therefore, the aim of this article is to provide a concentrated position of the Constitutional Court on the question of legitimacy of the interference with the property right, opposing with the principles of the restrictions of property right that were formulated in the practice of implementation of one of the most effective regional international treaty on the protection of human rights - 1950 European Convention on Human Rights. The main conclusion of the article is that the Constitutional Court should guarantee constitutional property right not only by classical instruments and national legal norms, but also following the contemporary legal doctrine of property rights developed in many states, that declines recognition of traditional triplet of rights of the owner, whereas European Convention of Human Rights should become effective instrument applicable for the protection of ones property right.
Already 10 years the Constitution of the Republic of Lithuania by the norms of Article 23, comprising indivisible complex, establishes three principle rules by which the State is obliged to guarantee the absolute inviolability and protection by the laws of a property right. The Constitutional Court several times ascertained that the principle of the inviolability of the ownership has to be implemented not in accordance with its grammatical meaning, but systematically interpreting the Constitution, for it cannot be implemented separately from the principles of respect of other human rights and freedoms and observance of laws. The influence of social philosophy also caused the refusal of the absolute protection of property right. Taking in to account the aforesaid tendencies, it is important to establish the possibilities of the interference with the property right, first of all, and legal basis, criteria and limits for the state to establish restrictions over the property right.
The Constitutional Court in its practice has listed only the principles of interference, however has not dealt at all with the conceptual basis, such as definition of a property right, its content, definition forms, which may in certain cases cause de facto expropriation, and other questions directly influencing the remedies of the protection of rights and freedoms of persons under Article 23 of the Constitution. Also the Constitutional Court has not comprehensively evaluated the influence of the international treaties over the protection of the property right still.
Therefore, the aim of this article is to provide a concentrated position of the Constitutional Court on the question of legitimacy of the interference with the property right, opposing with the principles of the restrictions of property right that were formulated in the practice of implementation of one of the most effective regional international treaty on the protection of human rights - 1950 European Convention on Human Rights. The main conclusion of the article is that the Constitutional Court should guarantee constitutional property right not only by classical instruments and national legal norms, but also following the contemporary legal doctrine of property rights developed in many states, that declines recognition of traditional triplet of rights of the owner, whereas European Convention of Human Rights should become effective instrument applicable for the protection of ones property right.
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Please see Copyright and Licence Agreement for further details.
