The right of servitude between public interest and undisturbed use of private property

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.