5
expropriation, but without being able, given that the Legislative Act No. 1 of 1999,
excluded the possibility of expropriation without compensation, to reach the conclusion
that there is no room for an appropriate compensation, as has been stated.
22.Following this line of reasoning, the Constitutional Court ruled that compensation may take
on a reparative function, but that “it does not always have to have a restorative function and, as
such, needs not be comprehensive.” It also found that the compensation should take into
account the interests at stake and weigh them case by case:
Compensation must be fair, namely, it should be fixed taking into account the interests
of the community and the affected person and, therefore, those interests must be
weighed on a case-by-case basis. (...) The role of the compensation is, generally, of a
reparative nature. It includes both consequential damages and loss of earnings.
However, in some circumstances, when assessing the interests of the community and
giving those interests special weight, it may be reduced to satisfy only a compensatory
function. Furthermore, in different circumstances, when assessing the interests of
affected person and giving these interests special constitutional value, as in the event of
the family home and others that are set out in this Judgment, the compensation may, in
both its amount and in its form of payment, take on a manner that makes it restorative.
23.
The Supreme Court of the United States has analyzed, as well, the issue of “just
compensation” using as a reference, Amendment V of the Constitution which establishes that
“private property may not be occupied for public use without a just compensation.” While it is
true that the Supreme Court's jurisprudence tends to establish that it is the “market value” that
determines the just compensation required by the abovementioned amendment. This was held,
for example, in the case of U.S. vs. 50 Acres of Land (1984), which stated that “just
compensation should be measured, usually, by the market value of the property at the time of
expropriation [be paid] in a contemporary money.” However, the Supreme Court itself has
stated that “when the market value is very difficult to determine or where its application may
result in a manifest injustice to the owner or to the public interest,” it is possible to depart from
said standard. 13 In U.S. v. Commodities Trading, the Court held that the consideration that is
always present in such cases is “what compensation is ‘just’ for both the owner of the property
being expropriated and for the public [State] who should pay the bill.”
24.As noted in the jurisprudence of the courts cited in the prior paragraphs, the synonymy
between "just compensation” and “payment of the market value” is incorrect. For said synonymy
to be correct in the Inter-American System, the American Convention would have used those
terms. The “just compensation” mentioned in Article 21(1) provides, therein, a context for
greater discretion to determine compensation based on circumstances which are related to the
market value of the property but incorporate the circumstances of general interest and public
interest who are at the base of the legitimacy of the expropriation and are factors to be
assessed in the determination of compensation. This is what the Court has done in the
Judgment on the Merits when it determined that the valuation should be the result of a "just
balance between the public interest and private interest.”
25.With the abovementioned being established, the “just balance between public interests and
private interests" as provided by the Court as a criterion, should take into account, of course,
the damage caused to those expropriated, whom, as determined by the Court, suffer an
infringement to their right to judicial guarantees and to the reasonable time, without to date, a
compensation being receiving for the expropriated property. But, on the other hand, there are
two crucial aspects that make the general interest and public interest.
26.First, there is the public interest that benefits from the result, that is, the Metropolitan Park,
which is a benefit to all who can make use of its facilities and, going beyond that, for the entire
population of the capital city who, with that Park, is provided a space for environmental
protection and clean air.
27.Second is the budget of the State agency that is expropriating and promoting the project
and plan of the Metropolitan Park, a municipal entity that has very limited resources and
13
Cf.. United States of America Supreme Court, “United States v. Commodities Trading Corp”, 339 U.S.
121, pg. 123 (1950); United States of America Supreme Court, “Kirby Forest Industries, Inc. v. United
States”, 467 U.S. 1, 10, pg. 14 (1984).
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents