It is well known that several days ago, the newly elected
Romanian Parliament has adopted a law supposedly aimed at solving old abuses
perpetuated by the communist state against some of its own citizens. Many of you have already memorized this new
law, by now. In Romania the politicians
that imposed this law on its citizens, are busy in a media campaign to
communicate that this law will redress old abuses in an equitable and final
manner.
The final vote on the meditation report, in the Chamber of
Deputies, was 222 votes for and 73 against.
The Liberal Party (PNL), the Democratic Party (PD) and the Democratic
Union of Hungarians from Romania (UDMR) have voted with the party that holds
almost half of the seats in the Romanian Parliament (PDSR). The votes against were casted by the party
of Corneliu – Vadim Tudor, his arguments being against the restitution of any
confiscated property.
In
my opinion, this law is far from being able to provide an equitable solution to
the nationalized and confiscated property problem. We do not have the time for an exhaustive analysis. Regardless of the results of our study, the
results will be obvious in a short while of application of this law. My guess is that the rightful owner will
have just as many or more major difficulties in their effort to recover what
was taken in an abusive manner. This
does not mean at all, suggesting giving up this effort. I will stop succinctly at few arguments that
make me believe that the one can not be optimistic regarding this law.
First of all I believe that this law validates all that was
done wrong after 1990, mainly under the law 112/1995 concerning the buildings
used as housing. Law 112/1995
established –cynically enough in my opinion – that the rightful owner can claim
his property if the owner was the occupant of his confiscated house or the
property was vacant at the date the law was issued.
Moreover,
the law established that the tenants of “nationalized” housing could purchase
them and this obviously happened.
Officially, from approximately 115,000 of such buildings
that fell under the jurisdiction of law 122/1995, more than 90,000 were sold,
many even in violation of the provision of this law. After 1996, during the administration of the so-called
center-right (anticommunist) coalition that came into power as of result of
support given by the civil society and even organizations such the Civic
Alliance (AC) and the Association of Former Political Prisoners (AFDPR), law
112 was applied with zeal.
This occurred, contrary to resolution 1123/1997 of the
parliamentary Assembly of the council of Europe that demanded restitution in integrum for the confiscated properties and a just compensation for the
properties that were impossible to returned.
Of important significance, is the information released by
the Romanian American Committee for Private property that shows that only 19
properties were returned to the rightful owner in the last 4 years, from 2,046
cases registered.
The
law just adopted by PDSR and its allies validates the wrongs done through law
112/1995. The over 90,000 tenants that
“purchased” nationalized properties at prices indicating that property is
stolen, will continue to hold these goods.
When
a political party that calls itself liberal votes against the principles of
private property, being on the same side with the party that is well known as a
left wing party, one must look for an explanation, somewhere.
The political elite after 1989 is the main beneficiary in a
long chain of events that led to the well-known abuses illustrated and
documented in the file called “The Apartment”.
More than 200 high-ranking officials grabbed some of the best
“available” villas, houses and apartments, many of them committing
illegalities.
Politicians belonging to all political parties together with
their clientele applied the same methods and procedures to benefit materially
from this vacuum of legality.
If this last law intended to correct the abuses of the past,
the first measure taken would have been to reimburse to “purchaser” its
ridiculously low price, plus interest, to reinstate the rightful owner and
provide loans and other state subsidies to help tenants become home
owners. Instead, the notion of “well
intended buyer” has been introduced to perpetuate the illegal possession of
confiscated properties by tenants. It
is easy to predict that the justice will not find even a single “ill intended buyer” and the higher in rank
the new owner, the higher the chance that he or she was “well intended”.
The deliberate delay in coming up with the law makes it very difficult to calculate proper compensation for other nationalized goods as industrial or commercial companies, banks, insurance companies, etc.
More than 10 years after the revolution, after years of
neglect, illegalities, abuses and selective privatization the true value of any
company has been drastically reduced, many of them being in danger of
bankruptcy.
One of the methods of compensation prescribed by this law is
a share in such companies. Privatized
or not, most of them will not be around in few years, while our houses will
stand up under “new ownership”.
It
is hard to explain why buildings housing political parties, schools, hospitals,
and other entities financed by state could not be returned to the rightful
owner. A grace period could have been
established and agreed upon, until the tenant found another rental
property. During this period the state
should have been paying rent. Just
naming the political parties between the beneficiaries of this new law shows
that most of them are housed in buildings that were nationalized or
confiscated.
Moreover, in many instances the rightful owner can not and
will not receive his or her property back, but the property can be sold
theoretically to anyone except the rightful owner.
Can
we call this a restitution law?
The main question is what can the rightful owner do under
the present circumstances? Personally I believe that the challenge of state
ownership must continue through the courts system. The constitutionality of
this law must be challenged. During the
past several years a false problem has been discussed, namely that the
Constitution should be amended to guarantee the private property and not just
protect it.
As I mentioned during the September Owner Congress in
Bucharest the article referring to the “protection of private property” in the
Constitution states:
“The
right to property, as well as the state obligations are guaranteed”. This need
to amend or change the constitution in order to regain the nationalized
property is a false requirement, created to confuse the issue. No one can say that the nationalized or
confiscated property can not be returned because the Constitution just protects
the private property not guarantee it.
The first article of the European Convention for Human Rights (ECHR) is
called “Protection of Property” not “Guarantee of Property”
I believe that the text of the law must be contested for its
lack of conformance with the Constitution, regarding the rights related to the
private property. Furthermore, I
suggest that the rightful owners may invoke or refer to the Article 20 of the
Romanian Constitution. It states: “If there are discrepancies between the pacts
or treaties regarding the fundamental human rights, of which Romania is a part
of, and the internal laws, the international regulations have priority”.
The law that makes the subject of today’s meeting is
contrary to the international regulations from one end to the other. The first additional Protocol of ECHR
ratified by Romania on June 20, 1994 states:
“No one’s property can be taken except for public utility needs, under
the conditions established by law and general principles of international law”.
Rightful owners, in my opinion, should question, even at
this late moment, the good intentions of the Romania authorities. In Romania you have exhausted all the legal
avenues where the right to property is just a simple Constitutional statement, manipulated
by the politicians and the legal system, at their will. Under these circumstances you are entitled
to, and you have the legitimacy and the moral obligation to address the
international organizations based on the lack of respect by the Romanian State,
regarding the elementary rights and freedoms of the individual.
The European Convention of Human Rights through the first
additional protocol represents an effective tool that may be used by the
property owner that could not recover his/her property in Romania.
The first additional protocol and Resolution 1123/1997 of
the Parliamentary Assembly of the Council of Europe represent two solid pillars
in the arguments favoring the return of illegality confiscated property, at the
European Court in Strasbourg.
Other avenues available to the property owner associations
are, challenging the application and enforcement of the Romanian Constitution
and obligations the state has, in front of international organizations at which
Romania aspire to become a member.
Your organizations should consider the mechanism available
under Resolution 1123 for reintroduction of monitoring of Romania if the
fundamental rights continue to be ignored.
Another possible approach is to invoke the norms and
mechanism established through Resolution 1031/1994 (regarding the obligations
of the member states as prescribed by the Council of Europe Statute, Council of
Europe Human Rights Statute and other conventions. Romania is part of and Resolution 1115/1997 (regarding procedures
for monitoring member states and establishing the commission observing the
honoring of Council of Europe member states – Monitoring Commission).
Of course, there is enough evidence that in the last 10 years the politicians from Bucharest did not fulfil the obligations assumed by the Romanian State under various international treaties and conventions. There is no reason to believe that in the near future we will witness spectacular changes. But, due to the more frequent and intensified talks with the European Union and NATO, it is suggested that Romania is approaching the moment of truth.
Now is the time to opt for the western values, for the
European integration and prosperity and this must be done with more than
promises.
Romania could be admitted in the European Union and NATO
only after serious steps will be taken to implement what was promised until
now.
Valerian Stan
January 27, 2001