50
118. Peru did not submit any arguments on this issue, since it did not appear
before the Court in the case sub judice (supra para. 78).
*
*
*
The considerations of the Court
119.
Article 21 of the American Convention establishes that:
1.
Everyone has the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society.
2.
No one shall be deprived of his property except upon payment of just
compensation, for reasons of public utility or social interest, and in the cases and
according to the forms established by law.
3.
Usury and other form of exploitation of man by man shall be prohibited by law.
120. Article 21 of the American Convention recognizes the right to private
property. In this respect, it establishes: a) that [e]veryone has the right to the use
and enjoyment of his property”; b) that such use and enjoyment may be
subordinated, by law, to “social interest”; c) that a person may be deprived of his
property for reasons of “public utility or social interest and in the cases and
according to the forms established by law”; and d) that this deprivation shall be upon
payment of just compensation.
121. Therefore, the Court must evaluate whether the State deprived Mr. Ivcher of
his property and interfered in some way in his legitimate right to its “use and
enjoyment”.
122. “Property” may be defined as those material objects that may be
appropriated, and also any right that may form part of a person’s patrimony; this
concept includes all movable and immovable property, corporal and incorporeal
elements, and any other intangible object of any value.
123. From Mr. Ivcher’s testimony, it may be concluded that, in 1985, he owned
shares in the Company and that, in 1986, they represented 49,53% of the capital.
By 1992, his participation amounted to 53,95%, and he was therefore the
Company’s majority shareholder. Obviously, this participation in the share capital
could be evaluated and formed part of its owner’s patrimony from the moment of its
acquisition; as such, that participation constituted a property over which Mr. Ivcher
had the right to use and enjoyment.
124. To determine whether Mr. Ivcher was deprived of his property, the Court
should not restrict itself to evaluating whether a formal dispossession or
expropriation took place, but should look beyond mere appearances and establish
the real situation behind the situation that was denounced 90.
90
Cf. Eur. Court H.R., Case of Belvedere Alberghiera S.R.L. v. Italy, Judgment of 30 May, 2000,
para. 53.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents