18
JAMES AND OTHERS v. THE UNITED KINGDOM JUGDMENT
40. The Court agrees with the applicants that a deprivation of property
effected for no reason other than to confer a private benefit on a private
party cannot be "in the public interest". Nonetheless, the compulsory
transfer of property from one individual to another may, depending upon the
circumstances, constitute a legitimate means for promoting the public
interest. In this connection, even where the texts in force employ
expressions like "for the public use", no common principle can be identified
in the constitutions, legislation and case-law of the Contracting States that
would warrant understanding the notion of public interest as outlawing
compulsory transfer between private parties. The same may be said of
certain other democratic countries; thus, the applicants and the Government
cited in argument a judgment of the Supreme Court of the United States of
America, which concerned State legislation in Hawaii compulsorily
transferring title in real property from lessors to lessees in order to reduce
the concentration of land ownership (Hawaii Housing Authority v. Midkiff
104 S.Ct.2321 [1984]).
41. Neither can it be read into the English expression "in the public
interest" that the transferred property should be put into use for the general
public or that the community generally, or even a substantial proportion of
it, should directly benefit from the taking. The taking of property in
pursuance of a policy calculated to enhance social justice within the
community can properly be described as being "in the public interest". In
particular, the fairness of a system of law governing the contractual or
property rights of private parties is a matter of public concern and therefore
legislative measures intended to bring about such fairness are capable of
being "in the public interest", even if they involve the compulsory transfer
of property from one individual to another.
42. The expression "pour cause d’utilité publique" used in the French
text of Article 1 (P1-1) may indeed be read as having the narrow sense
argued by the applicants, as is shown by the domestic law of some, but not
all, of the Contracting States where the expression or its equivalent is found
in the context of expropriation of property. That, however, is not decisive,
as many Convention concepts have been recognised in the Court’s case-law
as having an "autonomous" meaning. Moreover, the words "utilité publique"
are also capable of bearing a wider meaning, covering expropriation
measures taken in implementation of policies calculated to enhance social
justice.
The Court, like the Commission, considers that such an interpretation
best reconciles the language of the English and French texts, having regard
to the object and purpose of Article 1 (P1-1) (see Article 33 of the 1969
Vienna Convention on the Law of Treaties and the Sunday Times judgment
of 26 April 1979, Series A no. 30, p. 30, para. 48), which is primarily to
guard against the arbitrary confiscation of property.