Public water domain – Private use of the public water domain – recognition of acquired rights
Right to property and ownership;
Private use of the public water domain;
Recognition of acquired rights;
Principle that excess is prohibited.
RULING No. 326/15
23 of June of 2015
A legal norm says that anyone who sought recognition of their ownership of a section of the bed, shore or bank of any maritime, navigable or floatable water had to apply for it to the ordinary courts by 1 July 2014, and had to submit documentary evidence that the land in question was private or common property held by legitimate title before 31 December 1864. The challenged segment of the norm was the one regarding the obligatory provision of proof of ownership prior to the end of 1864. The Court found no unconstitutionality in this provision, ruling that it was not in violation of the right of access to the law and to effective jurisdictional protection.
By establishing a rebuttable presumption that waters and the land below and immediately adjacent to them belong in the public domain, the ordinary legislator admitted the possibility that private property rights to sections of the beds, shores or banks of public waters – i.e. waters that form part of the public water domain – can continue to exist. Constitutional jurisprudence on the distribution of the burden of proof says that the latter falls on the party in the best position to dispose of the material means or instruments with the ability to prove the facts in question. The Court said that in the present case this clearly meant the private owner. It also considered that the choice of 31 December 1864 was not arbitrary, given that this was the date when it ceased to be possible to privately transact the shores or banks of public bodies of water.
This case involved a mandatory appeal by the Public Prosecutors’ Office against a decision in which a court refused to apply a norm in the law governing the ownership of water resources, on the grounds that the norm was materially unconstitutional. This norm says that anyone who wanted to secure recognition of their ownership of sections of the bed, shore or bank of any maritime, navigable or floatable water had to do so via the ordinary courts, that the suit had to be brought by 1 July 2014, and that they had to provide documentary proof that the land was private or common property held by legitimate title before 31 December 1864.
The court a quo held that the requirement to provide evidence dating from before 31 December 1864 represented what it called a “diabolical evidentiary requirement”, in that owners were subjected to a demand that was very difficult or even impossible to fulfil, and thus ran the risk of forfeiting their ownership to the state. The court’s conclusion that this was unconstitutional was based on the constitutional parameter formed by the fundamental right to property and ownership.
In constitutional terms, among other assets the public domain includes both territorial waters and the contiguous marine beds and depths, and lakes, lagoons and navigable or floatable waters and their beds. This definition is based on the conviction that the public importance and use of bodies of water mean that they should not be the object of private transactions. To the extent that the public water domain is considered to be fundamentally linked to the movement of persons, goods and ideas, it concerns things that are deemed vital to the community, and this is why such waters form part of the public domain in virtually all of the world’s legal systems. Constitutionally speaking, the concept of public property also includes “Other property … classified as such by law”. There are thus forms of property that are classified as part of the public domain by the Constitution itself, and the status thus declared cannot be revoked by the ordinary law. These assets are known as ‘domain property by nature’, while others are domain property because the ordinary law declares them to be so. In the latter case the status can be changed by the ordinary legislator, albeit its margin for legislative manoeuvre is not absolute. Placing something in the public domain must be justified in the light of both the various interests protected by the Constitution and the principle of proportionality, inasmuch as that domain is linked to a public-law regime with the ability to remove property from private ownership. When the law subjects a given category of asset to the public domain, there must be grounds for doing so in terms of the need to fulfil a particular public interest.
The shores and banks of public bodies of water do not form part of the public domain by nature, and were first classified as belonging to it by an 1864 Royal Decree. This is why the legislator chose 31 December of that year – the date on which it ceased to be possible to legally transact them and they could no longer be acquired by adverse possession – as the historical cut-off point for securing recognition of private ownership of sections of the beds, shores or banks of any maritime, navigable or floatable waters, in the sense that self-proclaimed owners had to provide documentary proof of title prior to that date.
In order to analyse the question of constitutionality posed in this case, the Constitutional Court compared the normative provision which the court a quo refused to apply with the content of both the right to private property and ownership and the right of access to the law and to effective jurisdictional protection – both rights that are enshrined in the Constitution.
A large body of constitutional jurisprudence recognises that the nature of some of the dimensions of the right to property and ownership is analogous to that of the fundamental rights, freedoms and guarantees. One of those dimensions is the citizen’s right not to be deprived of his/her property, except by means of a public requisition and expropriation, which can in turn only be undertaken on the basis of a law and in return for fair compensation. The ratio underlying this requirement is the principle that everyone must be equal when it comes to the distribution of public costs, under which a serious, special sacrifice imposed on a private individual in the public interest must be compensated by the community. The legislator must balance the way it regulates the right to property and ownership with the relevant constitutional imperatives (such as the right to somewhere to live, the need for spatial planning, and the protection of public health). Over the years the Constitutional Court has repeatedly confirmed that the constitutional guarantee of the right to property implies the need for legal provisions that shape the social aspects of property and ownership.
Turning to the right of access to the law and to effective jurisdictional protection, the Court noted that its own case law establishes that not every type of effect on the right to private property has to be the object of compensation, but that any effect must always be justified in the light of the principle that excess is prohibited.
The Court took the view that it is possible for the right to property and ownership to be affected by procedural norms and norms that allocate the burden of proof, which are only unconstitutional in such cases if their effects on that right are excessive.
In the absence of private property rights, the shores and banks of public bodies of water form part of the public domain belonging to public entities. The challenged norm allocates the burden of proof and imposed a deadline on bringing legal actions to recognise such private rights – a deadline which, when the norm was considered by the court a quo, fell on 1 July 2014. In addition to this, they require the provision of documentary evidence that the right in question existed, or that the property was in private hands, at some time prior to 31 December 1864.
The Court said that this legal regime was justified by the need to make the basis for the inclusion of given assets in the public domain a stable one, that this particular norm only affected the shores and banks of navigable or floatable waters, and that the ultimate grounds for it were to be found in the need to protect constitutional interests to which these types of waters are indissociably linked.
The Court considered that setting a deadline on bringing actions to recognise such rights is an indispensable part of the process of stabilising the definition of the property that falls within the public domain.
On the requirement to prove a right of ownership, the Court evaluated a number of relevant considerations: it noted that pre-1971 legislation did not include any presumption that property belonged in the public domain, or any requirement or burden to bring suits in order to secure recognition of the private ownership of the banks and shores of bodies of water; it also acknowledged that while the Public Administration has been under a duty to begin classifying and demarcating the country’s hydrographic basins since 1892, that duty has never been fulfilled; and it recognised that there are other legal instruments (administrative easements and other restrictions imposed in the public interest) which at least partly make it possible to protect the public interests which the legal regime containing the norms before the Court was designed to safeguard, but that public domain status is nonetheless the best way to guarantee them. Taking all this into account, and given that there is valid justification for affecting the right to private property and ownership in this case, the Court saw no reason to deny the constitutional conformity of the norm before it, when judged in the light of the right of access to the law and to effective jurisdictional protection.
See Rulings nos. 329/99 (02-06-1999); 517/99 (22-09-1999); 659/99 (07-12-1999); 353/04 (19-05-2004); 159/07 (06-03-2007); 421/09 (13-08-2009); 596/09 (18-11-2009); and 480/14 (25-06-2014).