18
must be used.54 Therefore, using the estimation mode55 of the expert Estupiñán Narváez, the
State argued that the total valuation of the property corresponds to US$6,043,635.25, being
US$9.36 per m2, on the date between July 7th and 10, 1997, which reflects the moment when
the property was occupied by the Municipality.
53.
Besides the expert reports previously analyzed, the Court considers it useful to take
into consideration other complementary sources that were not objected and that contribute to
assess the just price. First of all, it takes note of the tables56 that show the values that have
been set in transactional agreements, exchanges, and judicial rulings,57 regarding several
properties that have been expropriated in the same area, which have an area greater than
30,000 square meters. Among them, there is a great difference in their cost, depending on the
method used to reach the final amount, being the exchanges the lowest, with an average price
of US$1.52 per m2, and the most expensive derived from judicial rulings, with an average of
US$8.19 per sq m2.58 In second place, this Court takes into consideration the assessments
made by other experts in the domestic trials, as well as the judicial decisions regarding cases
of expropriations of the properties in the area in question, including urbanized properties.59 In
this sense, from the data provided at the Courts of Pichincha an average payment of US$
47.5260 per m2 can be concluded.
c) Domestic regulations applicable in the expropriation proceedings
54.
The Court observes that in the period for the expropriation process before the domestic
jurisdiction of the property in question (since the year 1991 up to this date) the following
articles of the various modifications to the Political Constitution of Ecuador are relevant.
Political Constitution of 1984, Art. 50. To make effective the right to housing and to
the conservation of the environment, the municipalities may expropriate, reserve,
and control areas for future developments pursuant with the law.
Political Constitution of 1978, codified in 1997, Art. 62: For the purposes of social
order, determined by Law, the public sector, through the procedure and in the
terms stated in procedural regulations, may expropriate, prior fair assessment,
payment, and compensation, the properties that belong to other sectors. All
confiscations are forbidden.
54
To fix the price of the “land located in the area of environmental protection,” the following should be taken
into account: a) Given that this regards real estate that is not “marketable,” it is not feasible to establish a market
value, and b) that the legal classification of property as “environmentally protected” generates public benefits of social
and environmental means (flood control, landscape, passive recreation etc.), which should be evaluated by the
methods used for public goods without a market which usually leads to a higher value (case file of Preliminary
Objection and Merits, tome V, folios 809 and 810).
55
To make an appraisal of the land in question, the following criteria were taken into account: a) the unit value
of the rural land closest to the land being expropriated (R), b) the premises shall be taken of the unit values of both
the nearest urban land the expropriated land (Vx) and the rural land (Vp), and c) the average unit value of the
expropriated property (E) is equal to the unit value of rural land multiplied by the ratio formed by (Vx / Vp).
E=Rx
(Vx / Vp). Applying the actual values in the formula, the expert scored U.S. $ 9.36 per m2 (case file of Merits, take V,
folios 810 to 814).
56
Cf. Tables presented by the State (case file of Reparations and Costs, tome V, folios 1209 to 1215).
57
The table lists cases from 1986 to 2008.
58
Agreements (in m2 by dollar): Average 4,72,/ min. 1.8/máx. 19,84; exchanges (in m2 by dollar): min. 1.47 /
máx. 3.6; judgments (in m2 by dollar): Min. 1.5 / máx. 19,39 (Tables presented by the State, supra note 56
59
Cf. Case file of reparations, tome IV, folios 706 to 792
60
The minimum price by m2 corresponds to US$ 0,32 and the maximum price is US$ 200 by m2.