Tímarit lögfræðinga - 01.04.2017, Síða 71

69
EXPROPRIATION DECISION
Ásgerður Ragnarsdóttir, Supreme Court Attorney LL.M and adjunct Professor at HÍ and
Karl Axelsson, Supreme Court Justice and Associate Professor at HÍ.
Abstract:
According to Article 72 of the Icelandic Constitution no one may be obliged to
surrender his property unless required to do so by the public interest. Furthermore,
such a measure shall be provided for by law and full compensation must be paid.
This article addresses the decision to expropriate, the events which lead to such
a decision and the conditions which must be fulfilled. The nature of the decision
and the parties who hold the decision-making power are discussed, as well as the
procedural conditions which stem from the rules of administrative law. Emphasis
is laid on the substantive review which takes place at an administrative level
prior to the decision to expropriate. Conditions relating to the public interest and
proportionality which often have an ultimate bearing on whether the decision is
legitimate are discussed in detail.
The article explains that in some cases the legal bases for expropriation
are not as clear and unconditional as they should be, which can in turn cause
interpretative difficulties. There are also examples where the decision-making
power is held by the expropriator himself, although principles relating to the rule
of law indicate that the decision should be reached by an independent authority.
The concept of public interest as evidenced in judicial practice is discussed
and concluded that it is not necessary for a project to serve the interests of the
wider public. Thus expropriation can take place in the interest of certain parties
or a particular group. However, in such circumstances the review of whether
conditions of proportionality are met is particularly strict. Recent judicial practice
shows that the principle of proportionality has a defining role when any part of
the decision to expropriate is reviewed, such as its timing, extent or scale and
necessity. Moreover, an interplay between the principle of proportionality and the
administrative duty to investigate can be seen whereby insufficient investigation
of project alternatives at the preparatory stage can lead to the annulment of a
decision to expropriate. It is concluded that the part of the expropriation decision
which is not subject to judicial review is very limited and that procedural and
substantive conditions which must be met have grown alongside extended powers
of review. It is also pointed out that the legal framework for expropriation which
stems from Act no. 11/1973 is outdated and leaves various issues unclear, such as
when it is timely to reach a decision to expropriate. This harms both the interests
of the expropriator and the party obliged to surrender its property.