I/A Court H.R., Case of Salvador Chiriboga v. Ecuador. Preliminary Objections and Merits. Judgment of May 6, 2008 Series C No. 179.

Non official brief

 

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2008-2-e.pdf

 

Headnotes:

 

The right to property is not an absolute right. For the deprivation of a person's property to be in keeping with the right to property, such deprivation must be based on reasons of public utility or social interest, subject to the payment of a fair compensation and restricted to the cases and forms established by law.

 

The reasons of public utility and social interest to which the Convention refers comprise all those legally protected goods whose use allows the development of a democratic society.

 

In the case of a condemnation, in order for the State to fairly balance a social interest and an individual's interest, it must use the means that least infringe upon the right to property of the individual.

 

In cases of expropriation, a just compensation must be received promptly, adequately, and by means of effective proceedings. In order for compensation to be adequate, the trade value of the property prior to the declaration of public utility must be taken into account, as well as the fair balance between the general interest and the individual interest.

 

Summary:

 

I. In May 1991, the Municipal Council of Quito declared the property of Salvador Chiriboga and her brother, now deceased, to be of public utility for the creation of a metropolitan park. To counter this decision, the Salvador Chiriboga siblings filed a number of legal proceedings, three of which were still pending resolution as of the date of the Court's judgment. In addition, between 7 July and 10 July 1997, the State took possession of the property without a court order determining the final value of the property or ordering the payment of compensation. Though the State deposited 225.990.625 sucres for the alleged victim at a bank, no agreement had been reached regarding the amount of compensation. The State initiated a condemnation proceeding, in accordance with domestic law, to determine said amount of compensation. The condemnation proceeding was still pending as of the date of the Court's judgment.

 

On 12 December 2006, the Inter-American Commission on Human Rights (hereinafter, the Commission) filed an application against the State of Ecuador to determine the international responsibility of the State for the violation of Article 8 ACHR (right to a fair trial), Article 21 ACHR (right to private property) and Article 25 ACHR (right to judicial protection), in relation to Article 1.1 ACHR (obligation to respect rights) and Article 2 ACHR (domestic legal effects), to the detriment of María Salvador Chiriboga. Additionally, the alleged victim's representatives claimed violations of Article 24 ACHR (right to equal protection) and Article 29 ACHR (restrictions regarding interpretation), and the State raised the preliminary objection of non-exhaustion of domestic remedies.

 

 II. In its judgment of 6 May 2008, the Court first denied the State's preliminary objection, agreeing with the Inter-American Commission that domestic remedies had been exhausted and that pending domestic proceedings were not resolved due to serious problems affecting the administration of justice in Ecuador. The Court found violations of Articles 21, 8 and 25 ACHR, in relation to Article 1.1 ACHR, to the detriment of Salvador Chiriboga. It determined that though the creation of a park is a legitimate public use that furthers recreational and ecological ends, the State did not carry out the expropriation in the forms established by law or pay adequate compensation for the land.

 

With respect to the right to a fair trial and judicial protection, first, as of the date of the Court's judgment, the State had not resolved two domestic proceedings, initiated fourteen and eleven years ago, respectively, objecting to the lawfulness of the State's declaration of the alleged victim's land for public use. Thus, the State had exceeded what could be considered a reasonable time in processing these claims. Second, the condemnation proceeding initiated by the State, in accordance with domestic law, to determine the amount of the alleged victim's compensation was simple, yet did not constitute an effective remedy, since it had not produced results in more than ten years.

 

With respect to the right to property, because the State did not comply with the procedural terms set out in its domestic legislation, the condemnation proceedings that deprived the alleged victim of her property without the determination of a just compensation were arbitrary. The State violated Article 21 ACHR as it did not fairly balance the interests of the individual with that of society, nor pay her a just compensation, and therefore did not comply with the requirements necessary to restrict the right to property in accordance with the American Convention on Human Rights.

 

The Court found no violation of Article 2 ACHR, since the delay in the proceedings and the ineffectiveness of the remedies were not the direct result of the existence of rules incompatible with the the American Convention on Human Rights or due to a lack of rules preventing this situation.

 

The Court found no violation of Article 24 ACHR (right to equal protection) and Article 29 ACHR (Restrictions regarding Interpretation), citing a lack of evidence with respect to both.

 

Consequently, the Court ordered the determination of the amount and payment of a just compensation for the expropriation of the victim's property, as well as any other measure intended to repair the violations declared in the Judgment, to be made by common consent between the State and the representatives within six months. It also reserved the authority to verify whether the agreement made by the parties is in accord with the American Convention on Human Rights, and to determine the appropriate reparations, costs, and expenses to be paid by the State if no agreement is reached.

 

Judge Quiroga Medina and ad hoc Judge Rodríguez Pinzón wrote partially dissenting opinions and Judge Ventura Robles wrote a concurring opinion.