9
h)
Armando Bermeo Castillo and Germán Carrión Arciniegas: Proposed by the
State; both, lawyers. In the expert opinion they rendered, they stated that the
public sector has the authority to initiate condemnation proceedings and that such
procedure is subjected to the Act of Public Procurement, prior to an appraisal
conducted by the National Division of Appraisals and Land Register (Dirección
Nacional de Avalúos y Catrastos). However, they pointed out that this is not
applicable within the municipalities, since these are governed by a special law, on
the grounds of the Political Constitution that consider them as autonomous in the
functional, administrative and financial sectors. They mentioned that, in
accordance with the Civil Procedural Code of Ecuador (hereinafter, “Civil
Procedural Code”), the value of the condemned property is fixed according to the
price that appear in the Land Register of the two years prior to the year in which
the complaint was filed. Furthermore, they expressed that the values determined
are related to the value that serves as guide for the determination of taxes that
the owners of the properties should pay. Notwithstanding, in case of a
condemnation proceeding, the judge is not under the obligation to subject to the
appraisal established by the Dirección Nacional de Avalúos y Castastros, or by the
municipalities, according to the Civil Procedural Code.
20.
Moreover, the Court heard the following testimonies rendered in the public
hearing:
a)
María Salvador Chiriboga: Proposed by the Commission and the
representatives; alleged victim. She stated that she and her brother, Julio
Guillermo Salvador Chiriboga, dead, inherited the property from her father.
However, since 1991, she lost the possession of the property since the
Municipality of Quito included her piece of land in the area that now occupies the
Metropolitan Park without having received, so far, any kind of compensation,
though she still pays the taxes. She indicated that she has not received the
deposit the Municipality made in the condemnation proceedings regarding her
property. She added that she has initiated several proceedings in Ecuador in order
to protect her rights. She also mentioned that she has always good will to
negotiate a fair price for the piece of land with the municipal authorities, but that
such authorities have never made any specific offer. The condemnation of the
property has caused her such a financial impairment that she had to sell other
plots of land at low price. She also declared that regarding the emotional aspect of
the issue, her whole family has been involved in such proceedings and that she,
specially, has suffered some serious health breakdowns.
b)
Edgar Neira Orellana: Proposed by the Commission and the
representatives; lawyer. He rendered his opinion regarding administrative laws
and procedures, and he pointed out that such are old administrative law dogmas
that today have proved to be outdated. In all administrative proceedings, it is
necessary to have a written procedural record and this tends to favor the delay in
the administration of justice. He added that the protection of private property is
one of the guarantees that the Political Constitution has established in order to
ensure the rights of the individuals. Therefore, condemnation is only appropriate
when public utility or social interest is involved, but first it is essential to have a
fair appraisal and the payment of a compensation. With regard to the
condemnation proceedings established by the Civil Procedural Code, he indicated
that it should be solved in 38 days. Nevertheless, he pointed out that the triple of