32
113. Based on the foregoing, it is evident that, even though the purpose of the
condemnation has been legitimate, the State has not fulfilled the requirements
established in the American Convention by not complying with the procedural terms
contemplated in the domestic legislation and established as necessary procedural
conditions within the domestic venue, violating the nullum crimen nulla poena sine lege
praevia principle [principle of legality] and therefore, the condemnation proceeding has
been arbitrary.
114. The Court confirms that the lack of payment of a just compensation, in
accordance with the standards already established (supra para. 95 to 110) is evident in
the instant case and therefore, considers that the deprivation of the property without the
payment of a just compensation constitutes a violation of the right to property embodied
in Article 21(2) of the Convention.
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115. Furthermore, the Court notes that Mrs. Salvador Chiriboga had incorrectly paid
taxes and penalties, during the years 1991 and 2007.112 To such regard, the State
recognized it made a mistake when collecting the taxes and penalties from Mrs. Salvador
Chiriboga and so, by means of an order from the Municipal Council, decreed the
repayment of all the moneys improperly paid. However, the alleged victim reasserted
that the total repayment of all the moneys improperly paid has still not been carried out.
At the discretion of the Court, in the instant case, the payment of taxes and penalties
evidence the imposition of additional charges, which are considered excessive and out of
proportion for Mrs. Salvador Chiriboga, and which represents an aggravating
circumstance in relation to the violation of the right to property.113
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116. Finally, the Court holds that the State deprived Mrs. María Salvador Chiriboga of
the right to property for legal and well-grounded reasons of public utility, which consisted
in the protection of the environment through the building of the Metropolitan Park.
Notwithstanding, the State did not comply with the requirements necessary to restrict
the right to property provided for in the general principles of international law and
explicitly established in the American Convention.
117. Specially, the State failed to comply with the stipulations of the law, by violating
the judicial protection and guarantees, given the fact that the remedies filed exceeded
the reasonable term and were ineffective. The foregoing has indefinitely deprived the
victim of her property, as well as of the payment of a just compensation, which has
112
At the public hearing, Mrs. Salvador Chiriboga stated that she paid all the taxes up to the date of her
statement and has been doing it “for fear of a seizure if she did not pay”. Spite of the payment of taxes, she
has not been able to use the property. Other witnesses, such as José Luis Paredes Sánchez, who rendered an
affidavit before the Court, stated that despite the fact that the State condemned his property, he is obliged to
pay the taxes. Even further, the expert witness Edgar Neira Orellana stated that the surcharge on non-serviced
building areas is pointless to collect over those properties located in rural areas, for agriculture use; it has
sense when the real estate is located within the urban parameters and punishes the lack of building or fosters
the building within certain Municipality.
113
Cf. Case of Chaparro Álvarez and Lapo Íñiguez, supra note 47, para. 200 a 218.
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