Constitutionality Review

Contested Provision

The first sentence of the paragraph, which also contains the contested provision, stipulates that, as regards the immovable properties subject to legal restrictions on use in a manner that interferes with the essence of the right to property as being allocated for public services and government facilities under urban development plans, zoning plans; such plans will be carried out within five years from the entry into force of the implementation zoning plans, or such properties shall either be expropriated by the relevant authorities within budgetary means, or, in any event, the zoning plan shall be amended so as to eliminate the restrictions that prevent the exercise of property rights. The contested provision further provides that, in cases where the steps specified in the first sentence are not taken, the owners of the respective immovable properties shall be entitled to bring an action, before the judicial courts, for compensation arising from the infringement of their right to property against the responsible public authority.

Grounds for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional, as it envisaged the bringing of an action for claims related to property rights before the courts of law, whereas the issuance and implementation of zoning plans constituted administrative acts. Accordingly, it was argued that such actions should fall within the jurisdiction of the administrative courts. 

The Court’s Assessment

Article 46 § 1 of the Constitution stipulates that expropriation may be carried out only on the condition that actual compensation is paid for the immovable property. In this context, the payment of the actual compensation serves as a special safeguard for the property owners, which is also a requirement inherent in the principle of proportionality.

In cases of formal confiscation, which constitutes a form of de facto expropriation, the administration fails to carry out the expropriation process or to take necessary zoning actions so as to remove the restrictions on use within the time limits prescribed by law. Accordingly, the compensation awarded by domestic courts in cases of de facto expropriation aims to remedy and settle the unlawful interference with property rights. In this respect, not only the awarding of compensation by the courts, but also the prompt payment of the awarded amount to the property owners is a requisite for putting an end to the unlawful interference.

However, the contested provision alters the standard legal framework governing expropriation procedures, shifting the burden of litigation onto property owners whose land has been subjected to de facto expropriation. Furthermore, the cases where the land owned by the property owner is registered in favour of the defendant administration without the full and advance payment of the actual compensation awarded by the court cannot be regarded as providing genuine redress or settlement. Indeed, Article 46 §1 of the Constitution -save for the exceptional cases provided for in the second paragraph - does not allow for the expropriation of immovable property, in other words, its registration in the name of the administration, unless the full compensation is paid in advance. Accordingly, a legal arrangement intended to regulate such interference cannot be considered to meet the requirements of Article 46 in the absence of safeguards to prevent the registration of the property in the name of the administration without the awarded compensation being paid to the property owner.

In this sense, the contested provision appears to institutionalise and legitimise the practice of de facto expropriation, despite its clear incompatibility with the wording of Article 46 of the Constitution. It gives the impression that such interference may be regarded as a lawful substitute for expropriation. However, any procedure that effectively relieves the administration of its constitutional obligation to carry out expropriation in the manner prescribed by Article 46 would run counter to the constitutional requirements regarding expropriation.

It has been thus concluded that the contested provision, which enables the administration to confiscate properties designated for public services in zoning plans without conducting formal expropriation and in a manner contrary to the respective principles set forth in the Constitution, is incompatible with the express wording of the Constitution.

Consequently, the contested provision has been found unconstitutional and therefore annulled.