Institute of Architecture, Urban & Spatial Planning of Serbia
Doi
Abstract
For obtaining the land in order to build the magistral pipeline a specific
form of land expropriation is applied, namely the Right of servitude. The
Right of servitude can be realized on the basis of established public
interest, which can be defined according to the spatial plan of the relevant
area. The Right of servitude is analyzed from the point of its influence on
the respect of basic human rights of property owners to enjoy their property
in safety and without disturbance. Current legal framework in Serbia that
regulates procedures for acquiring land for the purpose of public interest
allows for breach of private property rights. There is a mutual inconsistency
between a number of decrees that regulate property rights for large
infrastructural development projects. A specific, and possibly a greater
problem, is the status of the local population, the land owner and other real
estate. It concerns their awareness of their private and individual rights,
as well as technical and other legal standards, which must be applied during
the preparation, construction and working stages of an energy facility.
Applying the Right of servitude as a way to acquire land for construction of
the Pipeline, there is direct breach of the basic human right as stated in
the first Protocol of the European Convention on Human Rights, namely that
‘every natural or legal person is entitled to the peaceful enjoyment of his
possessions’ (Article 1, Protocol 1). The Right of servitude allows the
investor to use ‘public interest’ as a way of gaining access to another’s
land, and under better financial conditions than if he were to apply
permanent expropriation. While the owner retains his/her ownership of the
land, inconvenienced by numerous limitations of its use, usability and market
value of the land becomes substantially reduced