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86.
The Tribunal has already pointed out the domestic legislation which embodies the
subjective remedies88 by which Mrs. Salvador Chiriboga could have solved the legal
situation of the expropriated property, and which are characterized by being prompt
recourses. Notwithstanding, as has been mentioned on several occasions by this Court,
the effectiveness of the remedies do not exclusively depend on whether these are
embodied in a law, but on the fact that in practice, they are prompt and simple and
above all, they comply with the purpose of solving an allegedly violated right (supra.
Para. 57).
87.
As has been proven by the Court, the passage of time exceeded the term that
should be regarded as reasonable in order for the State to deliver a final judgment in the
proceedings. This delay has generated other consequences, apart from the noncompliance of the reasonable time, such as the evident denial of justice, since more than
a decade has passed since the filing of the recourses and there is no final judgment over
the lawfulness of the declaration of public utility of the property being condemned.
88.
The denial of the access to justice is related to the effectiveness of the remedies,
since it is not possible to say that an existing recourse within the legal system of a State,
which does not solve the merits of the issue raised due to an unjustified delay in the
proceedings, can be considered an effective remedy.
89.
The Court considers that, due to the lack of a final resolution of the subjective
remedies filed by the alleged victim, the social interest alleged by the State to justify the
deprivation of the property is uncertain, and this puts not only the public interest existing
on the Metropolitan Park at risk, but also the real benefit to which the community as a
whole is being subjected before the possibility of an unfavorable resolution in this sense.
90.
This Tribunal deems that, in the instant case, the reasons of public utility or social
interest regarding the deprivation of the right to property of María Salvador Chiriboga
were legal and entailed a necessary justification to determine such restriction. As a
consequence, the reasons of public utility or social interest are well grounded in light of
the American Convention. Notwithstanding, this Court will mention the fact that the
subjective or full jurisdiction remedies filed by Salvador Chiriboga siblings have still not
been resolved within a reasonable time nor have been effective.
B) Payment of a just compensation
91.
Upon determination of the lawfulness of the reasons of public utility or social
interest regarding the deprivation of the right to property, the Court shall now proceed to
decide on whether such deprivation was conducted together with the payment of a just
compensation as required in the Convention.
92.
The Commission alleged that the compensation prescribed in Article 21 of the
Convention has not been complied with since the Municipality has deposited, at the time
of the filing of the condemnation complaint, the value that unilaterally assigned to the
condemned property and paid in favor of the referred Trial Court.
93.
The representatives stated that the legislation of Ecuador establishes that, upon
an expropriation proceeding, the payment of a compensation for the value of the
property must come before it, and it is clear that this has not been the case.
88
To such effect, the subjective or full jurisdiction remedy is embodied in the Administrative-Contentious
Jurisdiction Act.