Individual Democratic Institutions Research Fellowships 1994-1996

The research reports reproduced here are the responsibility of the individual authors. Their reproduction does not imply any form of official or unofficial endorsement by NATO. The reports are offered in unedited form, as presented by their authors, with a view to make their findings available to a wide audience. La protection juridique de la propriété privée dans le nouveau contexte social et économique de la Roumanie Simona Iliescu Nastase [Back to Index] Chapter 6 - The expropriation for reasons of public interest Any debate around this issue should begin from the analyse of the first article of the Additional Protocol to the European Convention of Human Rights. This article provides that any legal or natural person is entitled to the protection of his/its assets and no one can be deprived by his property except a reason of public interest and only under the circumstances provided by the law and by the general principles of international law. Following this text, the European Court of Human Rights decided that deprivation of property should ensure a fair balance between the general community interests and the preservation of the fundamental rights of individuals. As to the Romanian Constitution, it stipulates (art. 41.3) that no one can be expropriated except for reasons of public interest, established as such by the law, and only by a fair and previous compensation. Also, the same article stipulates that, for works of general interest, the public authority can use any subsoil but also has the legal obligation to compensate the owner for the damages produced to the soil, plantations or building, and generally for any other damages for which the state is liable. In both cases, the compensation is in principle established by mutual agreement, and if no agreement can be reached, by the law court. Based on the above mentioned constitutional provisions, the Law no.33/1994 which regulates the expropriation procedure, established the following expropriation principles : There cannot be expropriation without a reason related to the public interest; Any expropriation should include a fair and previous compensation; The owner should benefit from all due guaranties during the expropriation procedure. a) The general interest statement will be made public, thus giving the possibility to all interested persons to use the legal guaranties provided by law. The Romanian regulation does not accept an expropriation for reasons of private interest like in Belgium or France.(25) b) The ability of establishing the damages following expropriation belongs to the county court, which also establishes the amounts to be paid to each interested party by taking into consideration the real value of the assets in question, also the loss produced by expropriation. According to the law, the parties can convene upon the amount of damages and in this case, the court's role is just to acknowledge the parties agreement. A common procedure in most of the European countries, is the court procedure. In states like Belgium, France, Italy or Germany, the " judicial" phase represent a guarantee that the owners' rights are protected. During the court procedure is also established the amount to which each owner is entitled to(26).The deadline for payment should not be later than 30 days from the final court decision. c) Generally, the legal guarantees mean the recognition to the owner of the free access to justice, this giving the owner the possibility to defend his rights. Thus, the owner can contest the proposal of expropriation before the Government or the County Council. Each one of them have special commissions for solving this type of claims. The commission's decision can be appealed before the Appellate Court through the administrative litigation procedure, by following an emergency procedure. The expropriation can be effective only if it is a result of a final court decision. The appellate court is competent to decide upon expropriation, also to establish the amount of damages to be paid. Against the appellate court's decision, the owner can use one of the legal forms of appeal. If the expropriated building, is not used accordingly, within one year from the moment of expropriation, the ex-owners can claim the building back, unless a new statement of expropriation was made. The request for giving back the building can be filed before the County Court. Concerning the one year term, the Romanian law adopted a solution apparently more favourable to the citizens than the French one, which provides a five year term for such claims. The Romanian law introduced however, " statement of public interest" clause. Furthermore, although the law does not provide so, it is perfectly legal for the authorities to make a statement of public interest reasons" any time until the court gives its final decision about turning the building over to its former owner, including here the period of appeal. It is also important to mention that, in the case of real estate, if the concerned land or building is still being not used within a 30 years term, this land or building is subject to prescription, as the Romanian law provides. According to art. 38 of the expropriation law, the expropriation costs are supported by the expropriator ( the state). If the expropriated asset is first rented and then used according to the expropriation statement, the ex-owner has priority to rental. If the public works are not carried out, and the state intends to sell the asset in question, again, the ex-owner has priority to sale; the sale price will not be higher than the amount of damages, recalculated at the moment of sale. Considering the whole regulation related to the expropriation procedure and guarantees, it is more and more accepted the idea that, instead of being an instrument of the state discretionary power, the expropriation is an instrument of protection for the private property(27). Such a concept represents in fact a reassertion of the social function of the property, which stops being an absolute and personal right, a right that can be limited in order to satisfy the general interest(28).