PETITION TO THE EUROPEAN UNION IN THE MATTER OF A FLAGRANT BREACH OF THE TREATY ESTABLISHING A CONSTITUTION FOR EUROPE AND OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE UNION COMMITTED BY THE REGIONAL GOVERNMENT OF ANDALUSIA AND THE CENTRAL GOVERNMENT OF SPAIN AS A CONSEQUENCE OF THE DISCRIMINATORY APPLICATION AND UNCONSTITUTIONAL PROMULGATION OF THE SPANISH DROVE ROADS' ACT [LEY DE VÍAS PECUARIAS DE 1995"]
The following is an account of how the Spanish 1995 Drove Roads’ Act [“Ley de Vías Pecuarias de 1995”] has led to the appropriation (no compensation has or will be paid) by the Department of the Environment of the Province of Málaga, Spain of 20,000 m2 of land that I and my wife purchased in 1989. In doing so it has not only caused me substantial financial loss, it has also destroyed my dignity and my mental integrity.
Rather like
the Valencian Land Law that forces an owner to pay for the development costs of
their land against their wishes, this is also the story of how the Spanish 1995
Drove Roads’ Act clearly infringes Article II-77 of the “Treaty Establishing
a Constitution for Europe”, on the Right to Property (Article 17 of the
“European Constitution”):
“No one
may be deprived of his or her possessions, except in the public interest and in
the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss”;
Article 1 of
the “European Convention on Human Rights”:
“Every
natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law.”;
As far as
the “conditions provided for by law” are concerned it should be noted even
the “Spanish Constitution” under Section 33, Item 3 stipulates that:
“No one
may be deprived of his or her property and rights, except on justified grounds
of public utility or social interest and
with a proper compensation in accordance with the law”.
It is also
clearly in breach of the Article I-2 of the “Treaty Establishing a
Constitution for Europe”, on the Union’s Values:
“The Union
is founded on the values of respect for human dignity, freedom, democracy,
equality, the rule of law and respect for human rights, including the rights of
persons belonging to minorities.
These values are common to the Member
States in a society in which pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men prevail.”
Funded by the European Union itself under the programme designed to establish a network of footpaths and bridleways throughout Europe for the common good, the Government of Spain passed the new Drove Roads’ Act in 1995. The act declared that all the ancient drove roads whether registered in the land registry office or not are now “Public Domain”. It goes on to say that Public Domain is not subject to any acquired rights, that the rights of public domain never expire and that they take precedence over any entries in the land register or deeds no matter how old such entries or deeds may be.
The Drove Road’s Act then stipulates the procedure under which such drove roads and other public domain may be “recovered”; a procedure that begins with the “Classification” of the drove road (a procedure for defining its boundaries), followed by the so-called “Deslinde”, the process of physically demarcating such boundaries on the land using boundary markers, referred to in Spanish as the “Amojonamiento”, and lastly by the procedure known as “Recuperación”, that involves the removal of any fences or other obstructions preventing public access to the land. It is only once the “Deslinde” procedure has been initiated that the authorities are authorised to instruct the land register to enter the appropriate annotation or attachment against the entry for the affected property in the Land Registry Office.
As a result of the 1995 Drove Roads’ Act the Spanish central government and the regional autonomous governments are therefore responsible for the following circumstances that are clearly contrary to the Union’s Values.
Firstly, any person purchasing a property before the above Act became widely publicised, or indeed passed as legislation, could engage the services of a good lawyer to carry out all the normal searches prior to purchasing a property, find absolutely no evidence suggesting that the property they were purchasing had any encumbrances thereon, spend their hard-earned money on the property and still find that according to Spanish Law the land was not actually theirs.
Secondly, to make matters worse the “recovery” proceedings deployed have in many instances been
initiated based on existing “Classifications” dating as far back as 1945,
in other words during the Franco era, when more than half the Spanish population
were illiterate and no one contested anything for fear of reprisals.
Any unsuspecting buyers of such land are thus denied the opportunity
of contesting this stage, which is a critical stage in the proceedings at which
the Department of the Environment is normally obliged according to Law to prove
the existence of the drove road and define its boundaries.
Additionally, the 1995 Drove Road Act also establishes three main kinds of drove road: the “Vereda”, the “Cordel” and the “Cañada Real”, and stipulates very clearly that the MAXIMUM width of these drove roads will be 20 metres, 37.5 and 75 metres, respectively.
Thirdly, in spite of the latter, the provincial Departments of Environment throughout Spain, in a clear attempt to reduce the evident complexity of the proceedings and to obtain ownership over as much land as possible are consistently and systematically applying the maximum width to virtually all such proceedings, regardless of any physical evidence on the ground and with no regard whatsoever for any historic documented proof to the contrary.
To exacerbate matters further, it is the Department of the Environment (DOE) itself that both makes the proposals to define the boundaries on a drove road and passes a ruling on the proposal as well. They are, in other words, both judge and executioner.
The only recourse to Law that the citizen has in these instances is to file an appeal and/or a request for the suspension of the effects of the proceedings before the High Provincial Court of Administrative Appeal. It is only at this stage that the citizen’s appeal on a matter as constitutionally fundamental as the ownership of their land is heard by a judicial judge.
Fourthly, in some cases, because it is deemed politically expedient rather than for any fair and reasonable reasons, the DOE is using proceedings of this kind not to define the boundaries on ancient drove roads in an orderly, unbiased manner and systematic manner but to discriminately achieve other objectives like, for example, rights of access for vehicular traffic where landowners refuse to cooperate with the local authorities even if they are entitled not to do so by Law, effectively using the system to coerce and force private land owners to accept the wishes of the local authorities and others with no compensation.
Finally, it is of paramount
importance that the European Parliament appreciate that this last recourse to
Law that the citizen has, that of the High Provincial Court of Administrative
Appeal, is seriously jeopardised by the workload that the Spanish Courts have
waiting to be dealt with. The end
result of this is that IT TAKES TWO AND A HALF YEARS FOR THE COURT TO EVEN
ADMIT ONE’S APPEAL TO COURT IN THE PROVINCE OF MALAGA, MORE THAN THREE YEARS
FOR THEM TO EVEN CONTEMPLATE AN APPLICATION FOR THE SUSPENSION OF THE EFFECTS OF
THE PROCEEDINGS, AND UP TO NINE YEARS FOR
THE APPEALS COURT TO ACTUALLY PASS JUDGEMENT ON THE APPEAL.
It is common sense that the ownership of land can only be enjoyed whilst such land is in one’s possession; one can only plan, manage and use such land whilst it is legally in one’s ownership. As a result of the failure of the Spanish legal system to deal with such appeals efficiently and rapidly, none of the fundamental rights arising from the ownership of property are adequately protected by the Central Government and Regional Governments of Spain because until such time as one’s appeal is heard, subject of course to the outcome, ONE IS DEPRIVED OF ONE’S OWNERSHIP OF THE LAND FOR A PERIOD OF AT LEAST NINE YEARS.
The following is a summery of our particular case history.
In 1989 my wife and I purchased a smallholding in Genalguacil, Malaga, Spain, with the intention of re-building the old house and living there. Before purchasing the land we carried out a complete search at the Land Registry Office to confirm that the land was owned by the seller and that there were no charges or liens thereon. This was duly confirmed by obtaining a copy of the entry in the Land Registry Office certified by the Land Register.
We also checked the cadastral plans and archives for the area, all of which confirmed that indeed the property was then the property of the seller, whereupon we purchased the property and eventually acquired the deeds that date back to 1865.
At the time of purchase we were aware that next to the property there was an ancient livestock resting place ["Descansadero"] considered public property, clearly and physically distinguishable from the smallholding by an ancient stone wall and clearly marked on the cadastral plans for the area. There was also an ancient bridleway running along one side of the property, leading down to a river along the banks of which access was and is available to the livestock resting place.
In 1995 the local Town Council financed by the water authorities made a road through our property without our permission.
We then negotiated terms with the Town Council in exchange for the road, but the Town Council failed to fulfil the terms of our agreement.
As a result of the latter we closed the road.
The Mayor then threatened us that unless we opened the road he would ask the provincial Department of the Environment to instigate proceedings to define the boundaries on the public drove roads giving on to our land, which he then promptly did.
Subsequently, in 1997 the provincial Department of the Environment initiated proceedings to define the boundaries on the public livestock resting place next to the property and the bridleway based on the “Classification” that had supposedly been carried out on the area in 1969.
As part of these proceedings the DOE extended the boundaries of the livestock resting place beyond the ancient stone wall to include a hectare of our land right up to our house. They also informed us that the narrow and gullied bridleway behind our house was, according to the 1969 “Classification” (that had prescribed even before we purchased and that we were therefore not able to contest) a “Cordel”, that it had a width of 35.7 metres, and that half our house was therefore owned by the DOE.
Subsequently, however, that same year the DOE itself decided to overrule there own proceedings and initiate new proceedings without indicating why they had changed their minds.
In this first action and because the bridleway is also the boundary between our property and my neighbours, two of my neighbours were also affected by the action.
Having overruled the first action, the DOE proceeded to open a second action. These second proceedings culminated in January 2002 when finally the DOE declared that the “Cordel” did not actually follow the path of the old bridleway but cut through the middle of our land and that when it reached the livestock resting place instead of meeting the latter and ending at the livestock resting place, the “Cordel” then ran parallel to the latter until it reached the river, thus increasing the total surface area of the public domain on our property to approximately 20,000m2, or two hectares!
It is worth noting that these second proceedings, unlike the first, only affected our land. Indeed, even though the “Cordel” continues through the municipality of Genalguacil for a distance of approximately ten kilometres and then meets a “Cañada Real”, NONE OF THE DROVE ROADS IN THE REST OF THE MUNICIPALITY HAVE YET HAD THEIR BOUNDARIES DEFINED.
Subsequently the DOE have removed our fences, taken away our land and registered their ownership in the Land Registry Office. NO COMPENSATION HAS BEEN PAID; THE LAND HAS SIMPLY BEEN TAKEN AWAY FROM US and should we wish to rent the land for whatever purpose we would have to pay the DOE 6,000 € a year for the privilege.
During all this time, the DOE continuously harassed us by trying to fine us on several occasions for alleged offences that we had not committed.
Eventually, exhausted and drained by all the harassment, we gave in and allowed the Town Council to open the road. Since then we have been left in peace by everyone, but have received no compensation for the two hectares of land and no compensation for the road that occupies our land.
In the meantime none of the other drove roads in the municipality
have had similar proceedings opened on them and owners that really do have drove
roads running through their land continue to occupy it illegally even though in
their particular case, unlike ours, the drove roads actually do exist on their
land as testified by the cadastre and the documentary evidence that exists in
the Provincial Archives.
It is therefore alleged:
1) That we have been deprived of our possessions and that we have not been compensated fairly in good time for our loss;
2) That, as a result of the latter, we have been the victims of abuse of power on the part of the Town Council authorities of Genalguacil, the Department of the Environment of the Province of Málaga, the Regional Andalusian Government and the Central Government of Spain as a Member State of the European Union, and
3)
That, furthermore, this is because the 1995 Spanish Drove Roads’ Act as
passed by the Spanish Government breeches our constitutional rights as it does
those of any other landowners in a similar position, as stated under Article
II-77 of the “Treaty Establishing a Constitution for Europe”, on the Right
to Property (Article 17 of the “European Constitution”), and Article 33 of
the Spanish Constitution:
In witness whereof I do humbly beseech the European Parliament to take whatever action it considers appropriate to protect both our interests and that of any other individuals that may find themselves in a similar predicament.
La Escribana, Genalguacil, Malaga, Spain, this 24th day of October 2006