Individual Application

The Facts

The Directorate General for Foundations (“the Administration”) ordered the expropriation of the applicants’ immovable properties pursuant to Article 15 of Law no. 2863 on the Protection of Cultural and Natural Assets (“Law no. 2863”), on the ground that the property constituted a cultural asset requiring protection. The Administration brought proceedings against the applicants before the civil courts of first instance, seeking the determination of expropriation compensation and the registration of title. The trial courts conducted an on-site inspection and obtained expert reports. In the expert reports on which the courts relied, the applicants’ immovable properties were classified as plots of land, and the expropriation compensation was determined with reference to comparable properties. It was also stated therein that as the immovable properties had a commercial character for being used as shops, an objective increase in value of 150% should be applied. In an additional expert report drawn up in respect of one of the immovable properties, it was further indicated that, in addition to these characteristics, the same rate of objective increase in value should be applied in view of the artistic, antiquity and rarity value of the structure located on the immovable property.

The courts granted the claims, holding that no objective increase in value should be applied in determining the expropriation compensation. On appeal by both the applicants and the Administration against the first-instance decisions, the regional court of appeal dismissed, with final effect, the applicants’ appeals, save for certain rectifications made in the first-instance decisions.

The Applicants’ Allegations

The applicants maintained that their right to property had been violated, as the expropriation compensation for their immovable properties had been determined without regard to their cultural value, namely their antiquity, rarity and artistic value.

The Court’s Assessment

In the present case, the applicants primarily complained of the amounts of expropriation compensation awarded to them, which were lower than those determined in proceedings concerning the determination of the expropriation compensation and the registration of title in respect of comparable immovable properties. They further maintained that, under Article 15 § 1 (d) of Law no. 2863, the antiquity, rarity and artistic value of their immovable property had not been taken into consideration in the determination of the expropriation compensation, resulting in an undervaluation of the compensation.

Article 46 § 1 of the Constitution sets forth that the expropriation shall be effected in return for the real value of the immovable property and requires that the compensation awarded ensure a fair balance between the public interest pursued and the interests of the owner. In this regard, the proceedings concerning the determination of expropriation compensation and the registration of title, in the absence of agreement on the value of the property, are intended to secure payment to the owner of compensation reflecting the real value as determined by the courts. It is evident that, pursuant to Article 46 of the Constitution, the expropriation compensation required to reflect the real value must be determined having regard to all characteristics and qualities that affect the value of the immovable property. Otherwise, there would be a risk that the owner would be paid expropriation compensation that does not reflect the real value, in breach of the guarantee of full compensation. However, even where it is established that the antiquity, rarity and artistic value of the expropriated immovable affect its real value, it is not possible, under Article 15 § 1 (d) of Law no. 2863, for these factors to be reflected in the expropriation compensation. Therefore, the said provision entirely precludes the antiquity, rarity and artistic value of the immovable from being taken into account in determining the expropriation compensation, even where these factors affect its value, in breach of the guarantee of full compensation laid down in Article 46 of the Constitution.

In the expert report obtained in the proceedings concerning the expropriation compensation and the registration of title in the present case, it was stated that an objective increase in value of 150% should be applied having regard to the commercial character and artistic value of the immovable. Nevertheless, the courts fixed the expropriation compensation without applying any such increase and without addressing the findings of the expert report. Moreover, Article 15 § 1 (d) of Law no. 2863 expressly precludes the said characteristics from being taken into account in the determination of the expropriation compensation. Therefore, the antiquity, rarity and artistic value of the applicants’ immovable properties cannot be taken into consideration in the determination of the expropriation compensation, pursuant to Article 15 § 1 (d) of Law no. 2863.

Consequently, the applicants were deprived of the guarantee of full compensation enshrined in Article 46 § 1 of the Constitution, as a result of the provision which excludes the antiquity, rarity and artistic value of the immovable properties from being taken into account in determining the expropriation compensation, even where these factors affect their value. Therefore, it has been concluded that the interference with the applicants’ right to property was not in conformity with the wording of Articles 13, 35 and 46 of the Constitution.

Consequently, the Court has found a violation of the right to property.