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REFLECTIONS ABOUT PUBLIC PROPERTY in the ROMANIAN CONSTITUTIONAL SYSTEM and COMPARATIVE LAW – SELECTIVE ASPECTS Nicolae PAVEL

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REFLECTIONS ABOUT PUBLIC PROPERTY in the ROMANIAN CONSTITUTIONAL SYSTEM and COMPARATIVE LAW – SELECTIVE ASPECTS Nicolae PAVEL International Conference KNOWLEDGE-BASED ORGANIZATION Vol. XXI No 2 2015 REFLECTIONS ABOUT PUBLIC PROPERTY IN THE ROMANIAN CONSTITUTIONAL SYSTEM AND COMPARATIVE LAW – SELECTIVE ASPECTS Nicolae PAVEL “Spiru Haret” University, Bucharest, Romania e-mail [email protected] Abstract: What seems relevant for the present study to highlight is the approach evolving reflections about public property in the Romanian constitutional system and comparative law. The subject of the scientific endeavour will be circumscribed to the scientific analysis of its parts, as follows: 1) Introduction. 2) Identification of constitutional rules on public property in Romanian constitutional system and comparative law. 3) Highlights of Romanian doctrine and comparative law on public property. 4. Highlights of jurisprudence regarding public property. 5) Conclusions. Keywords: public property, Romanian constitutional system, comparative law, highlights Romanian doctrine, Highlights jurisprudence 1. Introduction existence of identical, consistent, 1.1. As results of bibliographic research inconsistent or divergent and of course, carried out, public property is new in point certain visionary remarks on their ideal of formulation, but it is not new in point of evolution. existence. Starting from this axiom, and, Aristotle considers that: any state is a kind paraphrasing M’Baye, [1] we may say that: of association and any association is set up „The history of public property merges with for some purpose (because for what they the history of humankind”. think is good, everybody does everything), Theorizing property under its various it is clear that all of them (associations) aspects goes back in time to Aristotle [2] converge to some good, and this purpose is who in Chapters III, IV, and V, of Book I, fulfilled as consummate as possible and entitled „On the state, On slavery, On tends to the more exquisite good that property”, analyses some aspects related to association which is the most consummate the state and to property. of them all and includes them all. This is The state as a political association is the so-called state and the political approached by Aristotle (384 B.C. – 322 association. B.C.), the founder of political science, In Book IV entitled Ideal Republic, Plato’s disciple and illustrious philosopher Aristotle resumes his theory described of the Antiquity and of ancient Greece. In above, acknowledging for the slaves on his famous work Politics the slave cities public land the capacity of human beings known by the author are described, supporting their release from slavery as compared, identified and classified for the follows: on private pieces of land, they will purpose of highlighting the similarities and belong to the landlord, on public lands will the differences between them, or the be of the State. DOI: 10.1515/kbo-2015-0084 © 2015. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License. 492 We will detail later on how we can behave revisions. with the slaves and why we should put 1.4. In our opinion, the studied field is before their eyes freedom as the price of important for the doctrine in the line of their work. public and private law in the matter, as well Moreover, according to Aristotle’s political as for practitioners of law, because we theory, he who participated in the exercise intend by this scientific approach to of public powers was considered a citizen. consider selectively a complex and As a conclusion of the above-said, Aristotle complete reflection, but not exhaustive of shaped for the first time by the theory the current sphere of public property. stating that on public pieces of land, the 1.5. Even if theorizing public property in slaves will belong to the state, the the Romanian constitutional system and in components of the modern theory on public comparative law can be found in doctrine, property. the theoretical interest for resuming it is 1.2. The first constitutional regulations, determined by the fact that in specialized which in our opinion, setting the extension literature the three normative, theoretical of public property sphere, implicitly set and jurisprudential aspects on public also guarantees on private property were property have not always been considered identified in the normative content of the properly. first written constitutions of the world, as 2. Identification of constitutional rules on follows: a) the Constitution of the United public property in the Romanian States of America of 1787, [3] the constitutional system and comparative law. normative content of Amendment V, to the 2.1. Identification of constitutional rules Constitution, entitled „Protection of the on public property in the Romanian rights to life, freedom and property” define constitutional system. the following principles: „No person can in A different discussion is required in relation a criminal case be deprived of life, freedom with The developing Statute of the or property without following the natural Convention of 7/19 August 1858. [5] course of trial law; no private property can The systematic analysis of the normative be taken over for public interest without content of the Statute of the normative fair compensation”. b) the Constitution of content of the State, the following aspects France of 3 September 1791, [4] in Title I, are worth mentioning: a) The Statute may, entitled „Fundamental provisions in our opinion, be considered a guaranteed by the Constitution” defines the Constitution, considering the provisions of following principle: „The Constitution art. XVII stating that: All civil servants, guarantees the inviolability of properties, or with no exception, on taking office are their just and previous compensation, found to swear allegiance to the whose sacrifice would be claimed by the Constitution and laws of the country and legally found public utility”. faith in God. b) The Statute contains no 1.3 From comparative law, in constitutional provision related to public property. matters, we selected for this study the 2.1.1. The Romanian Constitution of Constitution of France „The full text of the 1866 [5] Constitution of 4 October 1958 effective on The systematic analysis of the normative the date of constitutional revision of 23 July content of the Constitution shows that in the 2008” and the Constitution of Belgium content of Title II, entitled On the rights of „The text of the Constitution of Belgium of the Romanians defines for the first time in 17 February 1994, as supplemented with the constitutional history of Romania the the constitutional revisions until 12 March property of any kind, in the normative 2014”, because in our opinion, these content of art. 19, which in the matter, sets constitutions contain the most recent the following fundamental principles: 1. 493 Property of any kind, and all the claims Chapter II, Title III, entitled On the rights of against the State are sacred and inviolable. the Romanians, defines inviolability and the 2. Nobody can be expropriated except for guarantee of property of any kind in the cause of legally found public utility and normative content of art. 16, which in the after just and prior compensation. 3. Special matter, sets the following fundamental laws shall regulate the procedure and the principles: 1. Property of any kind, and the mode of expropriation. claims against the private persons and In our opinion, the syntagm “Property of against the State are inviolable and any kind” includes also public property, guaranteed as such. 2. No law can establish which is proclaimed “sacred and the penalty of forfeiture of assets, except for inviolable”. Moreover, we find that the cases of high treason and embezzlement fundamental law proclaiming as “sacred of public money. 3. Nobody can be and inviolable property of any kind”, also expropriated except for a cause of public sets the appropriate guarantees related to utility and after just and prior private property, and regulates compensation as set by the court under the expropriation, and the procedure and the laws. mode of expropriation. In our opinion, the syntagm “Property of 2.1.2. The Constitution of Romania of any kind” includes also public property, 1923 [5] which according to the Constitution is The systematic analysis of the normative inviolable and guaranteed as such. content of the Constitution shows that, in Moreover, we find that fundamental law the content of Title II, entitled On the rights procaiming as “sacred and inviolable the of the Romanians, defines which in the property of any kind”, also sets the matter sets the following fundamental appropriate guarantees, on private property, principles: 1. Property of ay kind and the regulating the fundamental principles claims against the State are guaranteed. 2. according to which: a) No law can establish Nobody can be expropriated unless it is for the penalty of forfeiture of assets, except for a cause of public utility and after a just and the cases of high treason and embezzelment prior compensation determined by justice. of public money. b). Nobody can be 3. A special law shall determine the public expropriated except for a cause of public utility cases, the procedure and the mode of utility and after just and prior compensation expropriation. as set by the court under the laws. From our point of view, the syntagm 2.1.4. The constitutional development of “Property of any kind” includes also public Romania followed in 1944 until the property that the Constitution adoption of the Constitution of 13
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