Constitutionality Review

A. Article 10 § 14 of Law no. 2942

Contested Provision

The contested provision stipulates that, where a stay of execution is granted in an administrative action for annulment, the said action must be treated as a preliminary issue in the civil proceedings concerning the determination of the expropriation compensation and the registration of the immovable property in the name of the administration.

Ground for the Request for Annulment

It was maintained in brief that pursuant to the contested provision, conclusion of the proceedings before the civil court prior to the proceedings pending before the administrative court may give rise to a loss of rights because a judgment regarding registration of an immovable in expropriation (compensation and registration) case shall be final. It was further argued that, although individuals may have the possibility of bringing an action against unlawful registration in the event of annulment of the expropriation decision, such a situation would nevertheless impose an excessive burden on individuals. On these grounds, the contested provision was claimed to be unconstitutional.

The Court’s Assessment

According to the impugned provision, where no decision on a stay of execution is issued in an action seeking the annulment of expropriation, the civil court may continue the proceedings and decide on the determination of the expropriation compensation and on the registration of the immovable property in the name of the administration.

In this regard, where a stay of execution is granted in an action for annulment brought against an expropriation decision, the said proceedings shall be treated as a preliminary issue by the judicial courts. However, even when a stay of execution is not granted within a reasonable time or where the request for a stay of execution is dismissed, the case may be granted on the merits and expropriation decision may accordingly be annulled.

In such circumstances, the fact that the review of the lawfulness of the expropriation decision and the determination of the expropriation compensation are carried out before different branches of the judiciary may undermine the effectiveness of review with regard to the lawfulness of the impugned decision. Accordingly, given that the disputes arising from expropriation proceedings are adjudicated by different judicial branches, and that an administrative case may be treated as a preliminary issue by judicial authorities only where a stay of execution has been granted, no effective mechanism has been established to safeguard the right to property, which reveals the existence of a structural problem.

The action for annulment against an expropriation decision aims at protecting ownership of the immovable property subject to expropriation. The effective submission of allegations of violations arising from interference with the right to property due to expropriation is only possible if the lawfulness of the expropriation decision is reviewed by the administrative courts before the finalisation of the expropriation process.

The contested provision does not provide any safeguard ensuring review by the administrative courts of the lawfulness of the expropriation decision prior to the finalisation of the expropriation process, except in cases where a stay of execution is granted. Accordingly, the provision, which fails to provide an effective opportunity for judicial review of expropriation decisions, is incompatible with the State’s obligation to establish necessary and sufficient mechanisms to raise the alleged violation of the right to property.

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

B. Article 14 § 6 of Law no. 2942

Contested Provision

The contested provision stipulates that, in cases of joint ownership or co-ownership, the outcomes of actions for annulment and for the correction of material errors brought by one or some of the joint/co-owners shall not produce effects with regard to the joint/co-owners who did not bring an action.

Ground for the Request for Annulment

It was maintained in brief that pursuant to the contested provision, a decision annulling the expropriation, rendered by the administrative courts and having the force of res judicata, would not produce legal effects in respect of joint/co-owners who did not bring an action. As a result, joint/co-owners who did not initiate proceedings before the administrative courts would continue to be affected by the expropriation that has been found unlawful. It was therefore claimed that such a situation imposes a disproportionate restriction on individuals’ right to property and right to a fair trial, rendering the provision unconstitutional.

The Court’s Assessment

Article 14 § 4 of Law no. 2942 provides that in cases of joint ownership or co-ownership, rightsholders are entitled to bring an action individually. Where the immovable property has not been de facto partitioned, each joint/co-owner is vested with the power of disposition over the entire property.

Moreover, regardless of whether the expropriation concerns the whole or only part of the immovable property, the rights of each joint/co-owner are affected by the said process. In this regard, once an expropriation decision is annulled on the ground of unlawfulness, the court’s finding of unlawfulness is valid in respect of all joint/co-owners of the expropriated immovable property, irrespective of whether they brought an action. This is, in fact, closely linked to the very purpose of an action for annulment, which seeks to render an unlawful administrative act null and void with regard to the entire scope of its effects from the date of its adoption.

Furthermore, when read together with the phrase set out in Article 14 § 3 of the Law, which provides “In cases of joint ownership or co-ownership, rightsholders are entitled to bring an action individually”, it is apparent that the legislator has introduced an exception, in the context of expropriation, to the institution of mandatory joinder of parties applicable to these forms of ownership. Given that there is a single administrative act at issue, it is clear that an action brought by one of the rightsholders is sufficient for assessing the lawfulness of the relevant act. In this sense, there is no doubt that the decision rendered will produce legal effects with regard to the expropriated immovable property, ownership of which is also vested in the joint/co-owners who did not bring an action.

However, the contested provision causes the expropriation decision to still have consequences on the owners’ property even after the judicial authorities, through an annulment decision, have established that the impugned process lacks a legal basis. Hence, the provision renders the expropriation decision, which has been annulled for failure to satisfy constitutional or statutory requirements, effective in respect of those joint/co-owners who did not initiate proceedings. Accordingly, the restriction imposed on the right to property through the impugned provision cannot be regarded as pursuing a legitimate aim.

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