The constitutional duty to compensate unjustifiably unequal public burdens

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Abstract

This paper aims to contribute to the dogmatic development of the duty to compensate unequal public burdens as a correlate or direct effect of the constitutional guarantee of equality before public burdens. To this end, it seeks to contradict the legal reasons on which the compensatory omission is based in certain hypotheses of national law and to propose a list of situations in which the restoration of the lost symmetry should operate. As to the characteristics of the compensatory duty of asymmetrical public burdens, it should be noted that: a) the unequal burden satisfies a public interest; b) the inequality that motivates the compensation is unjustified; c) the compensation only extends to the pecuniary damage effectively caused; and d) the non-existence or omission to exercise compensatory powers does not affect the levied party but only produces the mutation of the compensatory title from distributive equality towards the liability of the State for uncompensated damage in pursuit of public interest. Although the constitutional provision on the equality of public burdens does not establish state liability for unequal levies, it guarantees a compensatory state duty whose infringement gives rise — only then — to state liability (Articles 6 and 7 of the Constitution). The regulation of specific or statutory compensatory powers does not mean that the constitutional guarantee requires them to be operative. The compensatory duty emanates directly from the constitutional guarantee. The reason for its explicit regulation is due to the need to incorporate greater normative precision in particular cases. Therefore, the duty to pay applies even in the absence of specific compensatory powers, although on the ground of State liability for failure to pay. Formal equality in the imposition of a public burdens can also lead to material inequality for those who have had their legitimate expectations frustrated by the introduction of the burden. Likewise, partial indetermination of the compensatory obligation of Article 19 Nº. 20 does not prevent its enforceability either, when the duty to fix it corresponds to the State debtor. Unjustifiably unequal public burdens can be imposed by means of various powers. They are, inter alia, State acts of public interest that oblige a subject in good faith to give or do something in the performance of a public function; or to bear the deprivation or special limitation of property over tangible or intangible assets, the frustration of protected expectations, the repetition of an encumbrance procedure, and the greater onerousness of a legal duty due to unforeseeable events that cannot be attributed to the parties.

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APA

Mattar, J. A. (2022). The constitutional duty to compensate unjustifiably unequal public burdens. Revista de Derecho Politico, (115), 289–310. https://doi.org/10.5944/rdp.115.2022.36338

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