USA
Association of Owners Abusively Dispossessed by the State (APDAS)
Strada Maria Rosetti 23
Bucuresti
Romania
21 August 2001
The President of the Parliamentary Assembly of the Council of Europe
Lord Russel-Johnston
F- 67075 STRASBOURG CEDEX, FRANCE
Dear Mr. President,
The undersigned Committee for Private Property,
Inc. (CPP) and the Association of Owners Abusively Dispossessed by the
State (APDAS) are two non-governmental organizations seeking to assist
wrongfully dispossessed owners to recuperate their confiscated properties
in Romania. Please find attached copies of the statutes of our two organizations.
Our organizations found that the Romanian authorities,
more than a decade after the eradication of the Romanian totalitarian communist
regime, do not guarantee and respect some fundamental rights and liberties.
The Romanian authorities should observe these fundamental rights and liberties
because they are part of the Romanian Constitution and also because they
are part of international treaties signed by Romania. Our opinion is that
the property right in Romania continues to be violated especially because
a restitution in kind of confiscated properties was not guaranteed or even
made a priority by the post-Ceausescu governments.
On October 7, 1993 Romania became a member of the
Council of Europe. In April 1997, the Parliamentary Assembly of the Council
of Europe (PACE) decided to stop the monitoring of Romania regarding pledges
made by Romania prior to be admitted into the Council of Europe. The decision
to stop the monitoring of Romania was conditioned by the fulfillment of
certain conditions by Romania, like Resolution 1326 (1997) and Resolution
1123 (1997) of PACE.
Our organizations consider that since Romania
is not fulfilling its obligations towards the Council of Europe, it is
appropriate for us to inform the Assembly committee on the honoring of
obligations and commitments by member states of the Council of Europe (Monitoring
Committee) about this fact. Hereby our organizations kindly request that,
the Monitoring Committee analyzes Romania’s failure to comply with the
resolutions formulated by the Council of Europe. We also kindly request
that based on the Monitoring Committee’s findings the Council of Europe
considers the reinstatement of the monitoring of Romania.
Our requests are based on the following:
the provisions of article 3 of the Council’s Statute:“Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms and collaborate sincerely and effectively in the realization of the aim of the Council”
the provisions of Resolution 1115 (1997) on the setting up of an Assembly committee on the honoring of obligations and commitments by member states of the Council of Europe (Monitoring Committee)
paragraph
5 “The Monitoring Committee shall be responsible for verifying the fulfillment
of the obligations assumed by the member states under the terms of the
Council of Europe Statue, the European Convention of Human Rights and all
other Council of Europe conventions to which they are parties, as well
as the honoring of the commitments entered into by the authorities of member
states upon their accession to the Council of Europe”
Terms
of reference of the Assembly committee on the honoring of obligations and
commitments by member states of the Council of Europe (Monitoring Committee),
paragraph 2 (3) “An application to initiate a monitoring procedure may
originate from the Bureau of the Assembly”.
The
provisions of paragraph 15 of Resolution 1123 (1997) of PACE on the honoring
of obligations and commitments by Romania. PACE
“could decide to reopen
the procedure, in accordance with its Resolution 1115 (1997), should the
conditions stated in the preceding paragraphs not be fulfilled within a
year after the adoption of this resolution, or if it considers that Romania
is not honoring her obligations and commitments as a member state of the
Council of Europe”.
Our request does not intend to bring about the exclusion
of Romania from the Council of Europe, neither does it want to contribute
to the degradation of Romania’s international standing. Such negative consequences
for Romania would adversely affect Romania’s citizens. We only want that
the Romanian authorities respect our rights. We hope that soon Romania
can become a respected member of the international community, who fulfills
in good faith its international engagements, including those assumed when
Romania adhered to the Council of Europe.
The request of our organizations addressed to the
Romanian authorities is that Romania fulfills the requests prescribed by
Resolution 1123 (1997), paragraph 14 (4), “to amend the legislation
relating to the return of confiscated and expropriated property, particularly
Act. No.18/1991 and Act. No. 112/1995 so as to provide for the restitution
of such property in integrum or fair compensation in lieu”. Resolution
1123 (1997), paragraph 15 also indicates that “PACE could decide to
reopen the procedure, in accordance with its Resolution 1115 (1997), should
the conditions stated in the preceding paragraphs not be fulfilled within
a year after the adoption of this resolution, or if it considers that Romania
is not honoring her obligations and commitments as a member state of the
Council of Europe”.
Since the members of our organizations are rightful
owners (or the legal heirs of owners) of confiscated residential real estate,
we will present to you the situation and the status of these properties.
The Romanian Parliament adopted on June 28, 1995 Act. No. 112/1995 that
should have settled the legal status of residential properties confiscated
by the state. Act. No. 112/1995 did not guarantee restitution in kind of
confiscated properties even in situation in which this was possible. The
rightful owners were entitled to restitution in kind (according to Act.
No. 112/1995) only if they lived in the residences as tenants or if the
residencies were vacant. As reality has shown (a reality anticipated by
the authors of Act. No. 112/1995), the two conditions in which the rightful
owners were entitled to restitution in kind were extremely rare. This situation
gave way to an anomaly in most cases. The tenants who lived in the residences
were permitted, according to Act. No. 112/1995, to buy the residences at
very low prices. Our organizations compiled a statistical study showing
that from 115,000 confiscated residences more than 90,000 were sold in
this manner to the tenants. It is an obvious truth that the politicians
interested in these sales encouraged the cheap sale of confiscated residences
to the tenants without permission from the rightful owners. There are numerous
official numbers, investigations done by the media, and information held
by our organizations confirming that a great number of politicians and
public officials, as well as their relatives, installed themselves (many
as owners after they bought these properties according to Act. No. 112/1995)
into properties confiscated by the totalitarian communist state. In our
opinion, the amendment of Act No. 112/1995 requested by Resolution 1123
(1997) of PACE should have annulled the sales made according to this law
and should have provided for a restitution in kind of confiscated properties
to the rightful owners. Thus, such a measure would have been in accordance
with the First Protocol to the Convention for the Protection of Human Rights
and Fundamental Freedoms
(Article 1 – “Protection of property: Every
natural or legal person is entitled to the peaceful enjoyment of his/her
possessions. No one shall be deprived of his/her possessions except in
the public interest and subject to the conditions provided for by
law and by the general principles of international law. The preceding provisions
shall not, however, in any way impair the right of a State to enforce such
laws as it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or other contributions
or penalties.”). Such a measure would have also been in accordance
with Article 41 of the Romanian Constitution from 1991 (“The Protection
of Private Property - The right of property, as well as the debts incurring
on the State are guaranteed. The content and limitations of these rights
shall be established by law.”).
Nearly 4 years after the adoption of Resolution
1123 (1997) by PACE, the Romanian Parliament voted on February 8, 2001
Act. No. 10/2001 regarding the legal status of properties confiscated by
the state between March 6, 1945 and December 22, 1989. In our opinion,
Act. No. 10/2001 did not bring the expected amendments to Act. No. 112/1995
that Resolution 1123(1997) requested with regards to confiscated properties.
In this regard, we point your attention to an analysis made by the Association
for the Protection of Human Rights in Romania-Helsinki Committee (APADOR-CH)
in May 2001. Please find attached the text of this analysis, called “Report
regarding the restitution of real estate property abusively confiscated
by the Romanian State” (the translation from Romania into English was
done by our organizations). Next is the conclusion made by APADOR-CH in
its analysis regarding Act. No.10/2001, which is also relevant to the topic
of this letter.
The Association for the Protection of Human Rights
in Romania-the Helsinki Committee (APADOR-CH)) considers that the legislative
and administrative measures undertaken by the Romanian authorities after
1989, have only partially repaired the prejudices caused by the abusive
confiscations and expropriations ordered by the Romanian state. These reparatory
measures are not yet sufficiently enough in accordance with the principle
of restitution “in integrum”. At the same time, the reparatory measures
do not offer equitable compensations.”
Our organizations agree completely with the conclusions
made by APADOR-CH in its analysis. Hereby, we bring to your attention the
contents of this analysis. Our argument is that Romania still does not
respect and guarantee the right to private property because it does not
fulfill the requirements presented by PACE through Resolution 1123 (1997).
Our organizations also found that currently, 4 years after the adoption of Resolution 1123 (1997), Romania does not fulfill a number of other requirements formulated by PACE. For example, the refusal of Romania to return confiscated goods to some religious cults is a direct violation of paragraph 12 of Resolution 1123 (1997). Another example is paragraph 9 of Resolution 1123 (1997) regarding “certain provisions of the Penal Code now in force, which are unacceptable and which seriously imperil the exercise of fundamental freedoms, especially Articles 205, 206, 238 and 239 relating to insult and defamation, which interfere with the freedom of the press”. It is important to mention that despite PACE “earnestly requests” in paragraph 14 (4) “to amend without delay the provisions of the Penal Code and the Judiciary Act, which are contrary to fundamental freedoms as set forth in the European Convention on Human Rights”, the Romanian authorities did not fulfill any of the requests regarding the freedom of the press.
Dear Mr. President, we are convinced that you will give great attention to the matter presented by us hereby and we hope that you will respond to our request.
Please accept our deepest consideration.
Respectfully yours,
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CPP
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APDAS
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President,
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President,
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Mihai A. Vinatoru
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Maria Teodoru
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Enclosures documents: