România, repetenta Europei la restituirea proprietăţilor – un articol preluat de la AFP Wednesday, May 23 2012 

Articolul lui Isabelle Wesselingh (AFP) a fost preluat de catre Jurnalul National pe 22 May si este disponibil la:

“Mii de români, unii dintre ei octogenari, aşteaptă de peste 20 de ani restituirea caselor şi terenurilor ce le-au fost confiscate familiilor lor între 1945 şi 1989. Doar o mică parte au primit despăgubiri, ca urmare a aplicării inechitabile a legii, potrivit Curţii Europene a Drepturilor Omului (CEDO). România este repetenta Europei în materie de restituire a bunurilor confiscate de regimurile comuniste, majoritatea celorlalte ţări rezolvând această problemă spinoasă la începutul anilor 1990, comentează agenţia France Presse într-o amplă analiză dedicată chestiunii proprietăţilor confiscate de comunişti în ţara noastră.

“Săptămâna trecută, cei care continuă să aştepte această restituire au simţit o profundă nedreptate, după ce Guvernul a propus plafonarea compensaţiilor la 15% din valoarea reală a bunurilor, adică o scădere drastică, de la 100% cât se prevede în prezent. Premierul Mihai-Răzvan Ungureanu, care recunoaşte şi el că e o nedreptate, a invocat constrângerile bugetare, susţinând că plata integrală a despăgubirilor ar costa statului 16 miliarde de euro, o cifră contestată”, notează AFP.

“Factorul cel mai important în întârzierea cu care România a abordat chestiunea restituirilor este reproducerea elitelor comuniste după Revoluţia din 1989”, a declarat pentru AFP Lavinia Stan, profesor de ştiinţe politice la Universitatea Saint-Francois-Xavier din Canada şi autoarea unui studiu pe această temă. “În alte ţări ale Europei de Est, elitele comuniste au fost în mod clar înlocuite cu lideri necomunişti, dar în România liderii comunişti de rangul doi au luat locul familiei Ceauşescu şi apropiaţilor săi”, a adăugat aceasta. “Cum mulţi trăiau în proprietăţi naţionalizate, nu aveau niciun interes să lase proprietarii spoliaţi să-şi recupereze bunurile”, a explicat Lavinia Stan.”

After Oppression: Transitional Justice in Latin America and Eastern Europe (UNU Press) Sunday, May 13 2012 

Prof. Vesselin Popovski at the United Nations University in Tokyo, Japan, the academic arm of the United Nations, has initiated and brought to completion a large project comparing transitional justice experiences in Eastern Europe and Latin America. This project, conducted with the assistance of the United Nations University, Oxford University, and El Colegio Mexico, has resulted in a conference organized at Oxford University and a volume that will be published with UNU Press. A description of the project, which included a contribution on Romania that I signed, is available here.

“The gross violations of human rights in Latin America and Eastern Europe under authoritarian regimes created growing popular anger that finally exploded in mass revolts and demands for change, bringing the regimes to an end. It was a bottom-up process: a gradually rising discontent of ordinary people, who in the aftermath of the changes, made continuous calls for justice and accountability for the perpetrators of human rights violations, and simultaneous calls for compensation for the victims of these violations. The demands for justice and compensation faced initial reluctance, partly because political forces connected to previous regimes remained powerful and influential.

The processes of transitional justice have been controversial and complex, zigzagging from extreme demands for severe punishment to similarly unacceptable calls for blanket unqualified forgiveness. Transitional justice has had to perform a balancing act: paying full respect to grievances — traumatic, deeply emotional and divisive — while also taking into consideration strategies for societal reconciliation and future stability.”

The Restitution Titanic Sunday, Apr 29 2012 

Property restitution has constituted a divisive method of working through Romania’s multiple pasts: communist, fascist, and more generally pre-communist. Successive post-communist governments of all ideological persuasions have been unwilling to right past wrongs, generating instead a series of new injustices and consolidating impunity through commission and omission. The recent Democrat Liberal proposal to discontinue restitution in kind and cap financial compensation packages to 15 percent of the property market value represented a last-minute attempt to address a systemic problem identified eighteen months ago by the European Court for Human Rights. Proposed just days before the cabinet of Prime Minister Mihai Razvan Ungureanu stepped down for losing the confidence of parliament, the proposal raised more questions than it solved.

Confiscations, nationalizations and expropriations without due compensation affected land, factories, dwellings, churches and chapels, religious objects, gold coins, jewels, art objects, bonds, bank accounts, and other assets. Of these, the dwellings have been the most disputed, and the object of most complaints addressed by initial owners to the European Court. After the collapse of the communist regime, the ruling Social Democrats (heirs to the conservative faction of the Communist Party) made it clear that restitution in kind was to be the exception, not the rule of their transitional justice program. The official reason was that returning dwellings to initial owners reconstituted pre-communist social divisions, something that had to be avoided as seemingly incompatible with the new democratic order. The real reason was more mundane, since many Social Democrats occupied abusively confiscated dwellings for meager rents. In 1995, tenants were allowed to buy the dwellings they occupied at a fraction of market value. While the right to use usually derives from the right to own, in Romania the right to own derived from the right to use. The recently proposed legislation did little to rectify this anomaly.

After the 1996 elections, leaders of the ruling Democratic Convention and its junior partner, the Democrat Party, hastened to gain access to the most desirable dwellings, by sometimes evicting Social Democrat dignitaries and other times accepting them as neighbors. The Convention included the historic Liberal and Peasant Parties, while the Democrats were the heirs to the Communist Youth League and the reformist faction of the Communist Party. Transactions allowing tenants to buy ‘in good faith’ abusively confiscated properties were recognized as legally valid. The only improvement was that initial owners were permitted to approach the Romanian courts, a constitutional right the Social Democrats had stubbornly denied them. That courts could pronounce verdicts in restitution cases was a step forward from 1990-1996, when the government and the Prosecutor General considered that only parliament was entitled to settle the issue. Nevertheless, applying a crooked legislative framework could not end injustice. This is why starting in 1999 Romanian initial owners turned to the European Court, which accepted their petitions.

Since then, the European Court has ruled in favor of dozens of Romanian initial owners whose property right, right to approach the courts, and right to due process were blatantly infringed by the Romanian government. The total damages awarded by the Court have reached an estimated 10 million Lei per year, but the final tab could be much higher, since interest is applied when Romanian authorities pay no damages within three months of those damages being awarded. Most of the restitution cases the European Court settled fall into this category. Meanwhile, tenants have continued to use the dwellings at meager rent levels, while the total proceedings obtained from the sale of some of the confiscated dwellings by the state to the tenants ‘in good faith’ have remained remarkably low. In the Romanian case, property restitution has allowed a small group of privileged politicians and well-connected luminaries (actors, bankers, writers, university professors, journalists, and even former tennis players) to appropriate prized historical dwellings while transferring the cost of these transactions to the taxpayers.

In 2010, the European Court launched a pilot-judgment procedure in response to Romania’s lack of progress in resolving the property restitution issue, and the 1,500 nearly identical cases that Romanian initial owners had lodged with the Court. The pilot-judgment procedure signaled that the European Court judges had identified structural legal problems giving rise to repeated violations by Romania of the European Convention of Human Rights. The Court further decided to adjourn examining cases lodged by Romanian owners for eighteen months, pending adoption by Bucharest of measures streamlining and simplifying property restitution procedures and providing adequate redress to all those affected by the reparation legislation. The procrastination has worked against the individual homeowners, many of whom are old persons lacking the financial means needed to continue the legal fight. By late 2010, only 4,000 of the 63,000 property return claims lodged with the National Agency for Property Restitution, the central governmental agency mandated to recognize restitution demands, had been solved.

The Democrat Liberal response to the challenge raised by the European Court was a legislative proposal that addressed almost none of the injustices generated by previous Romanian governments but continued to disregard the initial owners’ constitutional right to property. First, the most important expense associated with property restitution relates to the damages for which the Romanian government incurs interest for not paying in time more than to the market value of the properties. Even if compensation is set to a fraction of the market value, arguably to help authorities meet reasonable compensation targets in times of financial crisis, the damages would continue to skyrocket as long as the government proposes no working payment plan. Money must be paid – all Romanian governments have chosen to cover damages, instead of full compensation. Second, if the Constitutional Court does not strike down the proposal as unconstitutional, then Romanian owners would fall into two categories based on the courts’ abilities to recognize their ownership rights with celerity. Owners whose property rights are recognized by courts before the proposal goes into force will be entitled to full financial compensation or restitution in kind, if possible. Owners whose cases cannot be heard by the courts by the time the proposal goes into force will be entitled to no restitution in kind and compensation of up to 15 percent. Owners would be within their rights to approach the European Court against the Romanian government, this time with complaints about the functioning of the local court system.