A compulsory acquisition of an immovable property can only be made for the benefit of the public and always under the principles of good governance.
The administration should only resort to such a decision and deprive an owner of his property or part of it, after examining all the possible alternative solutions through proper study and plans, with reference to the nature, extent and the needs of the public work.
The purposes for which a compulsory acquisition can be ordered are stated in the law and include those relating to the improvement, widening and construction of public roads, the creation of parking areas, the construction of airports, town planning and housing purposes, the improvement and development of agriculture, industry, commerce and tourism.
Moreover, it can be ordered for the development of natural resources, waters and forests, the promotion of the purposes of the municipal authorities and the legal persons of public law, such as EAC, CYTA, CYBC and other public institutions.
The issue affects the individual right of ownership which is protected by the Constitution and therefore, any decision for the compulsory acquisition of a property must be duly reasoned and prove to serve the public interest. According to the Constitution, a property can be compulsory acquired only by the Republic, the municipal authorities and the legal persons of public law or the organisations of public interest which have such a right under the law.
Therefore, the Community Councils have no such a right or power, something which was decided recently by the Supreme Court. The legislator did not give them any such competence or right, even though they are legal persons of public law and they sue or are sued under their name, they acquire or dispose property and enter into agreements.
The issue was examined through a recourse against an order for the compulsory acquisition of an immovable property for the purpose of creating a parking area in a village in the district of Nicosia. The order for the compulsory acquisition was issued by the Community Council of the village through the approval of the Council of Ministers. The owner affected by the order, through the recourse, requested the annulment of the order and consequently, the Supreme Court raised the fundamental question of whether a Community Council has such a right or power under the Constitution and the law.
The aforesaid issue was legally examined in relation to the provisions of the Constitution and the Community Councils Law, since a Community Council is a legal person of public law. Moreover, it was suggested by the Republic and the Community Council that the approval given by the Council of Ministers made the Republic the acquiring authority.
The Supreme Court rejected the latter submission, because the order was issued by the Community Council and not the Republic. With regard to the first submission, the Supreme Court referred to the term “legal person of public law” appearing in the Constitution, stating that this term is closely related to the administrative nature of the Republic, being bi-communal.
Thus, reference is made for separate municipal councils and for legal persons who have authority in the area of the Republic as whole, e.g. EAC, CYTA and CYBC. Also, the Republic represents itself as a united single state. The same does not apply with regard to Community Councils, since no reference is made to them in the Constitution, their authority being limited within their boundaries and they were outside of the contemplation of the constitutional legislator.
Consequently, the Court decided that the Community Councils do not have authority to order a compulsory acquisition and intervene with the right of ownership, so it ordered the annulment of the compulsory acquisition.
George Coucounis is an experienced lawyer practicing in Larnaca, Cyprus.
Educated at University College (London) and Thessaloniki University (Greece), George is fluent in English and has been practicing law in Cyprus since 1982.