El precedente constitucional y de convencionalidad en los procesos administrativos de expropiación

Abstract

The current legal world is transformed in an accelerated way, this means that Ecuadorian legislation requires incorporating into its regulations laws that contain daily needs in order to make common welfare viable, for this action, rules have been created that regulate administrative acts that issue public entities, as well as the relationship that the company has with the public sector, for which there are mechanisms for the defense and protection of rights, all of these enshrined in the Constitution of the Republic of Ecuador, with this context I must indicate that this work is going focused on the field of public administration and its relationship with private property in order to satisfy collective needs and prevail the common good over the private good. In this sense, I will analyze in the first phase the relevance of the constitutional precedent, which for many authors is the jurisprudence issued by the Constitutional Court at the time of the analysis of certain topics of interest, characterized by having a binding nature, that is, the precedent It must have an effective use, according to the criteria given in each sentence, causing a positive impact for the correct application of the norm, for this purpose the Constitutional Court of Ecuador as the highest organ of constitutional control has issued a series of pronouncements regarding the administrative procedure of declaration of public utility that at the moment of not reaching a common agreement with the expropriated person, regarding the fair price, a process called expropriation proceeds in the jurisdictional instance, an action that allows an impartial third party to resolve the controversy in accordance with a technical report that will contain the fair appraisal, to For this effect, it is necessary to investigate whether constitutional precedents are applied directly by state entities, analyzing their application and content. On the other hand, the Organic Law of the National System of Public Procurement (2008) allows public entities to acquire private and public real estate in order to satisfy collective needs, for which they will proceed to the administrative procedure of declaration of public utility and interest social as established by the Constitution (2008) in its article 323, regulations that empower the State Institutions to declare the expropriation of real estate as long as there is a fair prior assessment, compensation and payment; by virtue of this, the Constitutional Court as well as the Inter-American Court of Human Rights have ruled on the expropriation process, not deciding on its origin, but the analysis has focused on what is considered as "the fair price", indicating the fundamental parameters that the state entities must observe for a fair assessment, and in the case of non-compliance, the constitutional and human rights of private property would be violated. In this context, it is necessary to analyze whether the constitutional precedent, as well as that of conventionality in its binding part, is observed and applied within the respective State Institutions and its incidence in respecting the right to property established in the Constitution of the Republic of Ecuador