Eminent Domain and Habeas Corpus: Key Concepts and Procedures
Eminent Domain
Eminent domain, also known as expropriation, involves the state’s power to take private property for public use. This process is subject to specific legal requirements and procedures.
Key Concepts and Steps
- Declaration of Necessity: The government must declare the public need for the project and the necessity of acquiring specific properties.
- Property Identification: Detailed identification of the properties to be expropriated, including their characteristics (natural and legal aspects), and the data of the owners (residence and address).
- Valuation and Procedure: The process must follow specific valuation criteria and applicable legislation.
- Public Information: Information about the properties and owners must be published for a period of 15 days in the corresponding official bulletin.
- Report and Agreement: A report is generated, and an agreement is reached.
Legal Framework
The legal framework for eminent domain includes:
- Public Interest: The process must serve a public interest, which may include public works, urban development, or national security.
- Fair Compensation: Property owners are entitled to fair compensation for the expropriated property.
- Legal Procedures: Specific legal procedures must be followed to ensure due process.
Special Procedures
Special procedures may apply to expropriations involving:
- Areas or groups of properties
- Properties of historical, artistic, or archaeological value
- Urban development projects
- Colonization projects
- Public works
- National security and defense needs
Constitutional Basis
Article 33 of the constitution recognizes the right to private property and inheritance, stating that no one can be deprived of their property or rights except for a justified cause or public utility, with fair compensation. Article 128 establishes that the country’s wealth is subject to the general interest.
Public Utility
According to Article 10, public utility is implicitly understood in expropriations for state plans of works by provinces and municipalities. When the state undertakes a project, the public utility is implied.
Habeas Corpus
Habeas corpus is a legal procedure that protects individual liberty against unlawful detention. It ensures that a person detained is brought before a court to determine the legality of their detention.
Key Aspects
- Purpose: To protect personal liberty and fundamental rights, preventing arbitrary detentions.
- Mechanism: A legal mechanism to challenge the legality of an arrest.
- Constitutional Basis: Recognized in Title 1, Article 17.4 of the constitution, which guarantees the right to liberty and security.
- Legal Framework: Regulated by Organic Law 6/1984, which outlines the procedure for habeas corpus.
Principles of Habeas Corpus
- Agility: To quickly address illegal violations of liberty.
- Simplicity: Minimal formal requirements, allowing verbal appearances without a lawyer.
- Generality: No individual or authority can evade judicial control over the legality of detentions.
- Fiscal Ministry: The Fiscal Ministry is a guarantor of legality and the rights of citizens.
Who Can Apply?
The following can apply for habeas corpus:
- The detained person’s spouse or relatives.
- The public defender or the Fiscal Ministry.
- A judge or the institution where the person is detained.
- Legal representatives.
Historical Context
The term comes from the Latin phrase meaning “you shall have the body.” Its history dates back to the Roman Empire, where it was known as libero homine exhibendo, aimed at freeing individuals from unlawful detention. It evolved through various legal systems, including English law, and is now a fundamental legal protection.