Procedimento expropriatório e administração pública dialógica: estudo comparativo da expropriação no Brasil e Portugal

Abstract

The purpose of this article is to comparatively analyze compulsory acquisition in Brazil and in Portugal, taking into account the grand scope of the matter. The subject in question is presented to the reader starting with the examination of property law as a fundamental and constitutional right and with the necessity of making it compatible with the power of expropriation under the Democratic State of Law. The authors admit that there is a need of converting the unilateral and authoritarian Public Administration into a dialogic and democratic one, using the administrative process and its principles of due process and adversarial principle as an ideal starting point authors criticize the outdated Brazilian expropriation legislation (Decreto-lei 3.365/41) emended during the authoritarian period of the Vargas Government, offering an interpretation according to the Constitution in order to value democracy, legal principles and consensus. The analysis of Portuguese legislation (Lei 168/99) demonstrates that there is progress in respect to Portugal, however, in Brazil, there are conflicts regarding fair compensation and indemnity for expropriated property. Portuguese methods of extrajudicial conflict solutions deserve praise. In conclusion, the exchange between International Community Law and National Law is also contemplated in this article, be it on the analysis of the Perdigão vs. Portugal case decided by the European Court of Human Rights (Portugal), or through the Supranational perspective of provisions of the Pact of San Jose, Costa Rica (Brazil).