Las garantías constitucionales de la propiedad y de la expropiación forzosa a los treinta años de la Constitución española.

Abstract

The most important part of the Spanish Constitutional Court’s doctrine on article 33 of the Spanish Constitution was established during its first ten years of activity. Significant changes in the interpretation of this constitutional provision may be brought by the application of the principle of proportionality, which has been substantially developed by the Court during the past decade. This essay argues that the least convincing rulings of the Court are those which confer constitutional status to some of the provisions laid down in the Law on Compulsory Expropriation of 1954, and that this is the reason why the conflict between legislative expropriation and the due process of law has not been duly resolved yet. It also argues that expropriatory laws —i.e., any law having an expropriatory rather than a merely regulatory effect— must foresee the “proper compensation” required by article 33. Expropriatory laws in breach of this “Junktim-Klausel” must be deemed unconstitutional, and the compensation cannot be awarded by the courts.