Stručni rad
PROTECTION OF OWNERSHIP RIGHTS IN THE EXPROPRIATION PROCEDURES BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS
Sanja Zagrajski
Sažetak
The Constitution of the Republic of Croatia stipulates expropriation as an exception and it is authorised if the requisition or the limitation of a person’s ownership right is needed in order to build facilities or perform works in the interest of the Republic of Croatia and if it was evaluated that the use of the real estate in a new manner shall obtain greater value from the previous one under condition that the previous owner receives compensation for the expropriated real estate in the amount of the market value of the real estate which is being expropriated. Therefore, the compensation for the expropriation is condicio sine qua non, so that there cannot be any expropriation without paid compensation. The Expropriation Act defi nes the market value and the compensation in the amount of the market value is considered as just compensation. This conclusion is put in question following the amendments to the Expropriation Act in 2006 which stipulate for an expropriation without paid compensation if the facility in question was built without documents needed for the beginning of works with an exception of a facility built until 15 February 1968. As rule, the compensation for expropriated real estate (in case of complete expropriation) is determined through another real estate of corresponding value and only if the user of expropriation cannot secure such real estate or if the previous owner does not accept the real estate offered, the compensation is to be determined in cash or another allowed form (shares, bonds, commodities and similar). In most cases of complete expropriation the compensation is determined in cash and during the procedure of expropriation, whereas the competent offi ce in most cases (almost exclusively) uses evaluations prepared by court experts. The methodology used for the calculation of the real estate’s market value is not proscribed by the Law nor is evident from the evaluations based on which the compensation to the previous owner is determined. The European Court of Human Rights is of opinion that during the expropriation a just balance has to be reached between the demand related to the general interest and an individual’s right to peacefully enjoy his or her property whereas the absence of compensation for the expropriated real estate in the amount which is not reasonably connected with the value of the real estate regularly presents the State’s intervention that may not be justifi ed under Article 1 of the Protocol no 1. For the fi rst time in the Republic of Croatia the procedure based on provisions of Article 428a of the Civil Procedure Act is to be repeated where the position of the European Court of Human Rights will have to be respected in respect of the compensation and the methodology used for the calculation of the compensation for the expropriated real estate but also in respect of a special satisfaction in related to decreased value of the part of the real estate which was not expropriated.
Ključne riječi
ownership; expropriation; compensation; amount of compensation; evaluation of real estate; methodology used for the calculation of compensation; fair distribution; right of an individual; general interest
Hrčak ID:
30406
URI
Datum izdavanja:
10.11.2008.
Posjeta: 9.274 *