23
adjudication of the case requested by the Court, the State furnished a certificate from the
Secretary General of the Metropolitan Council of Quito, which evidences that the land was
occupied after the Ninth Trial Court granted authorization to occupy the property, by
means of court order of September 24, 1996. Based on the foregoing, in consideration of
the arguments of the parties and the court order issued by the Ninth Trial Court on
September 24, 1996, this Tribunal consider that the Municipality of Quito occupied the
property between July 7 and 10, 1997.
73.
The reasons of public utility and social interest to which the Convention refers
comprise all those legally protected interests that, for the use assigned to them, allow a
better development of the democratic society. To such end, the States must consider all
the means possible to affect as little as possible other rights and therefore, undertake the
underlying obligations in accordance with the Convention.
74.
Similar to the social interest, this Court has interpreted the scope of the reasons
of general interest established in Article 30 of the American Convention (scope of the
restrictions), by pointing out that “[T]he requirement that the laws be enacted for
reasons of general interest means they must have been adopted for the "general welfare"
(Art. 32(2)), a concept that must be interpreted as an integral element of public order
(order public) in democratic states, the main purpose of which is "the protection of the
essential rights of man and the creation of circumstances that will permit him to achieve
spiritual and material progress and attain happiness" (American Declaration of the Rights
and Duties of Man, Introductory clause 1.)”73
75.
Furthermore, this Tribunal has pointed out that "the concepts of 'public order' or
'general welfare', as derived from the general interest, when they are invoked as a
ground for limiting human rights, must be subjected to an interpretation that is strictly
limited to the "just demands" of "a democratic society," which takes account of the need
to balance the competing interests involved and the need to preserve the object and
purpose of the Convention […].”74
76.
In the instant case, there is no controversy among the parties regarding the
object and purpose of the expropriation of the property belonging to Mrs. Salvador
Chiriboga. Moreover, this Tribunal emphasizes, in relation to the deprivation of the right
to property, that a legitimate or general interest based on the protection of the
environment as the one seen in this case, represents a cause of legitimate public use.
The Metropolitan Park of Quito is a recreational and ecological protected area for such
city.
*
*
*
77.
Besides, this Tribunal notes that even though in the proceedings before the InterAmerican system, there is no controversy regarding the declaration of public utility with
regard to the use of the property, within the domestic jurisdiction, Mrs. Salvador
Chiriboga did lodge two subjective or full jurisdiction remedies, objecting to the
73
29.
74
Cf. The Word “Laws” in Article 30 of the American Convention on Human Rights, supra note 61, para.
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (arts.
13 and 29 of the American Convention on Human Rights); Advisory Opinion OC-5/85 of November 13, 1985.
Series A Nº 5, para. 66 and 67 and The Word “Laws” in Article 30 of the American Convention on Human
Rights. Advisory Opinion OC-6/86 , supra 61, para. 31.