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Please send in any articles note worthy on the subject illegal
property seizures.
Further information, please contact:
Ms. Alexandra Mareschi
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Subject: 24.09.2006, free for publication
Sender: Ing. Claudius Mott, Dr. Ing. Ovidiu Lupas
Contact: www.projusticia.net
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In blatant opposition to the reiterated statements of the successive Romanian governments, restitution of private property is today very far from being fairly and completely resolved.
The following overview shows the implementation of Communist confiscation laws between 1945 and 1989, the subsequent sellout of the seized real estate from 1994 to 2006 and the recent facts, which prove that the post-communist governments are at no point ready to fully restore confiscated property to their rightful owners.
1. The communist seizures and the post-communist sellout
The expropriation laws issued by the communist regime (1945-1989) , infringed the valid Con-stitution at that time (Art. 8), the Civil Code (Art. 481), as well as the International Treaties signed by Romania. In 1998, the Romanian Parliament acknowledged that all previous confis-cations of property had been abusive and that the Romanian state had never obtained a legal title to that property.
Notwithstanding this, after 1990 the crypto-communist administration started selling most of the seized real estate, to tenants or to privatized companies, mainly to their political cronies, at ridiculously undervalued prices . Law 112 of 1995 subsequently legalized these sales, thus blatantly violating the Convention for the Protection of Human Rights and Fundamental Freedom , just one year after Romania signed it up.
As purchasers of this real estate were fully aware of its origin and also of the ridiculously low prices they had paid, there could be no doubt that these transactions had not been done ”in good faith“. The same law restricted real estate allowed for sale only those confiscated „with a title”. However, corrupt state servants also sold real estate which had been seized “with no title“, thus infringing even the injunctions of the law.
2. The pseudo-restitution policy
Law 10/2001 on the legal regime of certain properties abusively taken over, from March 6, 1945 to December 22, 1989.
This legislation aimed mainly to deceive the international agencies monitoring Romania’s evo-lution towards authentic democracy. It only apparently remedied past illegalities. Although the first article of thid law proclaimed restitution in kind to be the prevalent working procedure, the following dispositions contained so many derogations that restitution in kind practically re-mained an exception. E.g. purchasers of real estate who pretended having bought it “in good faith” were preferred to the dispossessed legal owners. This was the real situation in about 85 % of the cases. In such situations the selling contract remains valid even if disputed property had been seized “with no title”. To those owners only compensation in cash or in services was promised. This law thus legalized past abuses for all times.
3. The Present Situation
In its political program the new administration had solemnly promised to solve all the problems connected with confiscated property, one of its incentives being the hoped-for admission to the EU in 2007. The program also included a promise to apply rigorously the principle “restitutio in integrum”, and, where not possible, to supply fair financial compensation. Similar recommen-dations had been stipulated by the Resolution 1123/1997 of the Parliamentary Assembly of the European Council, but have never been implemented to date.
Amendments to Law 10/2001 further disappointed the dispossessed owners:
- Purchasers “in good faith” were definitely preferred to rightful owners
- Real estate sold to private companies will not to be restituted in kind to legal owners
- Claimants could no longer take action against illegal sales, as the final date of August
2002 for suing against previous decisions remained in force;
- Compensation in cash to those owners to whom restitution in kind had been denied
was now definitely abolished. They were to receive only bonds/obligations of a fund
named “Proprietatea” (Property), whose capital coverage seems at the least precari
ous (stocks of not yet privatized state companies, foreign debts to Romania of Third
World countries). By now, more than one year after the law has been issued, this
fund has not yet received a final legal basis;
Thus the government broke its promise of restitution in kind of real estate, as may be seen from the following facts:
- Property restitution is extremely sluggish: in Bucharest, after 5 ½ years after the issue of the restitution law 10/2001, only 4,3 % of the claimants received their property titles. While 14,80 % of the petitioners received a positive or a negative answer, the rest of the claimants, i.e. 85, 2% (36.030 from 42.291) did not receive any answer at all! The situation seems to be similar in other parts of the country, but authorities do not disclose figures for other regions/towns.
- Corrupt authorities are openly continuing to sell confiscated real estate.
- Compensation in cash, has now been replaced by titles of a fund named “Proprietatea” (Property), not guaranteed by the state. No one can predict at which rate these titles can be sold as well as at which date this fund will be operational. At this time the legal basis making this fund operational is not yet cleared,
- Local authorities, working hand in glove with the local mafia, obstruct with impunity property restitution even in cases in which the courts have issued irrevocable decisions in favor of the legal owners. Only substantial bribes can modify their attitude.
- Even in those cases in which the courts did pronounce final and binding decisions in favor of the legal owners, the contested buyers of the property introduce new suits in court invoking arbitrary motives, in order to delay of the restitution of the property.
4. Non-restituted property is one of the main causes of corruption in Romania
Corruption aspects related to confiscated property appear at any level of the Romanian society:
- high-level politicians of all political parties, who benefit from stolen properties in best locations, which they bought at less than 10 % of their market value. Romanian deputies ap-proved recently three laws, through which the state is allowed to sell real estate at ridiculous prices to certain privileged categories (tenants, doctors of medicine, political parties). Expropri-ated real estate is not excepted from this sell-off. And favorites of the regime, who bought ille-gally confiscated real estate ten years ago for such ridiculous prices, are now allowed to resell it for ten times higher prices!
- networks of judges, lawyers and civil servants, who offer their services to claimants in order to make possible a prompt property restitution in exchange of substantial participation quotas
- civil servants openly pretending bribes.
As a consequence of the inefficient bureaucracy, the sluggishness of the restitution process, the corrupt judiciary and the general prevalent governmental unwillingness, a flourishing parallel market for acquiring litigious rights has appeared in Romania. Worn out by 16 years of unfruitful efforts, many impoverished and now old legal owners resigned themselves and sell their property rights to an influential mafia network, typically at a quarter of their market value.
5. Position of the European Court of Human Rights
The non-restitution of abusively confiscated real estate constitutes an infringement of interna-tional treaties, e.g. of the 1st Article of the 1st Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe.
The European Court of Human Rights (ECHR) recently confirmed the legitimacy of the claims of dispossessed owners concerning the restitution of their property in numerous decisions, e.g.: Strain (request nr. 57001/00), Paduraru (request nr. 63252/ 2000), Porteanu (request nr. 4596/03), Jujescu (request no 12728/03), Radu (request no 13309/03), Weissman (request no 63945/00).
The Court decided that:
- the Romanian State was entitled to confiscate private property only in cases stipulated by valid laws, for public utilities and granting fair and anticipated compensations. As communist laws never granted such compensations, these expropriations were abusive. Therefore the Ro-manian state was not entitled to alienate abusively confiscated real estate
- the legislation and jurisprudence concerning real estate was contradictory and not clear.
Or the absence of a clear, coherent and predicable legislative frame generates corruption.
The numerous complaints concerning this matter demonstrate that similar abuses are very numerous and systematic. The respondent state should be obliged to implement adequate measures in order to avoid further similar infringements of the Convention. As a consequence, the Romanian State should be obliged to adapt and enforce its legislation. This would mean for example the suppression of the effects of the censured law 112/1995. Otherwise courts in Ro-mania and the ECHR would be suffocated by the numerous cases (3965 complaints have been introduced against Romania only in 2005).
6. Conclusions:
Taking into account the above mentioned facts:
- the Romanian Authorities should be convinced to:
- accelerate the property restitution process:
- forbid the alienation of expropriated real estate until the situation of respective claim is definitively cleared and render void previous abusive transactions;
- implement preventing measures in order to avoid future abuses.
Comments might be sent to Claudius Mott, Email.
www.projusticia.net
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