In Cape Verde, the right to private property is one of the structuring principles of the Constitution of the Republic. It is enshrined in article 69, with the following wording: “Everyone has the right to private property and its transmission in life or death, under the terms of the Constitution and the law.”
It turns out that the right to private property is not an absolute right, since this right can be imposed limitations, namely, the figure of public expropriation.
In short, expropriation causes the owner to lose his right to ownership. However, it should be noted that expropriation does not occur in any situation, because it is necessary to fill in certain conditions to expropriate a private person;
For this purpose, and so that the expropriation is not abusive, the Legislator regulated through Law No. 2030 of 22 June 1948, amended by Law No. 5 / VII / 2007 of 22 January, the legal figure of public expropriation and its procedure, safeguarding the rights of expropriated persons.
What is public expropriation?
Expropriation is the subtraction of the right of property or rights related to it, its owner and its appropriation by a different subject (State, local authorities or any public or private authorities), for the realization of a public purpose, by means of the payment of a fair and prior indemnity in cash.
First of all, it is worth saying that expropriation only affects private real estate, because when it affects public domain goods, we are dealing with the figure of appropriation. Expropriation may concern all or part of real estate, and rights relating to real estate.
The expropriation of immovable property is the subtraction of the goods subject to the right to property, namely land and buildings. The expropriation of rights relating to real estate is the expropriation of other real rights that are not the right to property, namely the real rights of enjoyment and guarantee, but also the mandatory or credit rights that apply to the real estate.
The State, local authorities or any public or private authorities when expropriating a property, automatically extinguish the rights that encumbered it, and the expropriating entity must pay indemnity to the owner and compensation to each of the holders of mandatory rights and rights credits that affect the property. It should be noted that the said compensation must be paid in cash.
Real estate and the rights inherent to them, can only be expropriated on the basis of public utility, included in the attributions, purposes or object of the expropriating entity, and expropriation should be limited to what is strictly necessary to achieve the intended purpose, observing the principles of legality, justice, transparency, impartiality and good faith.
Therefore, sacrifices are imposed on the expropriated individual for the benefit of the community, however, this advantage / benefit does not have to be mandatory for the whole communicated, and may, for this purpose, be for a significant part of the community.
It should be noted that, also for the expropriation to be admitted, it is necessary that the benefit that will result for the community cannot be obtained in any other way, except through the expropriation of the private. Otherwise, the expropriator must resort to alternative means, instead of public expropriation.
What does the process of public expropriation consist of?
Our legislator has established two processes for public expropriation, otherwise let’s see:
i. An administrative process, which consists of the set of acts that gravitate towards the act of declaration of public utility;
ii. A judicial process, which covers acts related to the discussion of the value of the indemnity, which is within the jurisdiction of the arbitral and ordinary courts, depending on whether the expropriation is litigious or amicable.
The expropriative process begins with the submission of the request for declaration of public utility by the interested party, to the member of the Government responsible for spatial planning, which is the entity that has the competence to declare the public utility of expropriation.
This request must be accompanied by certain documents, among which, the succinct identification of the assets subject to expropriation, referring to the property description and matricial registration, and mentioning the rights, encumbrances or charges that affect them as well as the names of the respective holders and stress, the end of expropriation, and the proof that an agreement was attempted.
And if all the requirements are met for the expropriation to be decreed, the responsible Government member declares the public utility, passing the property to the Administration’s possession.
During the administrative procedure, it should be noted that:
If the expropriated is in agreement with the expropriation, but they do not reach an agreement regarding the price, one should go to the district court judge to resolve this discrepancy, being here, before a case of friendly expropriation;
If the expropriated is not in agreement with the expropriation, but it is still granted for reasons of public utility, the price must be fixed, and in the absence of an agreement on the price, an appeal is made to the arbitral tribunal, and to the decision from the arbitral tribunal you can appeal to the Court – being here, before a litigious expropriation;
The expropriating entity must proceed with the appropriation of the budget allocation that supports the expropriation charge.
Administrative possession is always communicated by the expropriating entity, within 8 days, by registered letter with notice of prior receipt, to the expropriated or legal representative, and this communication must be publicized elsewhere.
An administrative possession record must be drawn up.
What are the guarantees of individuals in the context of the public expropriation process?
When it comes to the guarantee of private individuals, we are talking about the means that private individuals can use to defend their rights.
The first guarantee that the individual has is a guarantee of a general nature, namely that of opposing expropriation, that is, the individual has the right to a contentious challenge, based on illegality and opportunity.
However, specific guarantees are also given, namely, forfeiture, the right of reversal and indemnity.
That said, what does each of these guarantees consist of?
Reversal is the right that the expropriated person has, to claim the property back. If, at the end of two years after the award of the thing, it is not applied to the purpose that determined its expropriation or the purposes of expropriation have ceased, the person may request that the property return to its legal spher.
And the reversal must be requested within three years from the occurrence of the fact that originated it.
Forfeiture occurs when the person who has the right to reversion does not request it within three years, thereby expiring, the right to reversion, with the expropriated having only the preemptive right in the first disposal of the assets, for a period of twenty year.
The indemnity aims to compensate not the benefit that the expropriating entity will obtain with the result of the expropriation, but rather, the real value of the asset according to its use and situation at the date of the Declaration of Public Utility.
From the above, it is concluded that, since expropriation is a limitation to the right to property, this, as a rule, cannot be done at the “nice pleasure” of the expropriating entity, and the respective legal procedure must be followed, so that there is no violation of fundamental rights of individuals.
However, individuals are guaranteed means of defense, in the face of the arbitrariness of the public administration, in order to safeguard, in other cases, recover their rights.