On October 12, 2010, the European Court of Human Rights (the “ECHR” or the “Court”), issued its first pilot judgment against Romania in a case entitled Maria Atanasiu and Others v. Romania (the “Pilot Judgment”). The judgment itself was not shocking considering the significant number of decisions in the restitution field already decided by the Court against Romania over the past several years. In those decisions, the Court repeatedly sanctioned Romania for its inability to set up an effective restitution and compensation mechanism for the victims of the former communist regime. However, it seemed as though the Romanian authorities simply didn’t care about the Court because they did virtually nothing to remedy the situation for almost a decade.
Law 10/2001 was ostensibly designed to compensate persons whose properties were confiscated by the communist regime. In reality, it was initially meant to be little more than a schmecherie – a ruse in Romanian. The political will to create a genuine restitution scheme was lacking. Even after the 2005 reforms, no meaningful effort was made to induce any serious measure of functionality into the system. Claims languished over many years while claimants died of old age waiting for justice. The whole system of determining the validity of restitution claims was and is bogged down in a bureaucratic maze of indecision and indolence.
Suddenly, thanks to the intervention of the ECHR, the whole situation in Romania must change immediately or Romania will face the untenable effects of the “pilot judgment” against it which are considerable. While the Court had previously recommended to the Romanian state that it remedy the massive procedural problems in validating claims, nothing much happened. Faced with such inactivity and the lack of political will exhibited by the Romanian authorities, the ECHR has now taken a more severe approach. Romania is now forced to find solutions to the systemic and endemic problems that have mired restitution claims, and solve them in a time frame of eighteen months, under the direct supervision of the Committee of Ministers of the Council of Europe. Romania must quickly find a coherent and effective mechanism to speedily respond to claims for compensation from the victims of the communist regime or, among other things, be suspended or even tossed out of the Council of Europe.
Brief Overview of the Restitution Regime
We have presented summaries of the legislation in the restitution field often since 2001. For more details, please visit the Romanian Digest™ Archive at http://www.hr.ro/digest_archive.htm. Briefly stated, early in 2001, Romania adopted Law 10/2001 regarding the legal regime for immovable property abusively confiscated during the period March 6, 1945 through December 22, 1989, which permitted victims to claim restitution in kind for their confiscated properties or, if that was no longer possible, to seek restitution in the equivalent.
In 2005, the adoption of Law 247/2005 represented a major step in the restitution and compensation process. The creation of Fondul Proprietatea -- the Property Fund -- brought hope to those persons who could not obtain restitution in kind for a variety of reasons. To be effective, the Fund had to be listed on at least the Bucharest Stock Exchange. A seemingly endless list of Romanian ministers repeatedly promised the imminent listing of the Fund but, five years later, Fondul Proprietatea has still not been listed. One of the reasons for the ECHR sanctions was that the compensation mechanism of Fondul Proprietatea was not operational without the Fund being listed and was therefore not a true form of payment.
In an effort to streamline the restitution process, Law 247/2005 mandated that the National Authority for Property Restitution (hereinafter “ANRP”) was to be the only competent authority to perform the evaluation of immovable’s through independent evaluators and based on international evaluation standards where restitution by equivalent was to be granted. This was supposed to end the unjustified delays in the restitution process and the interference of various factors at the local level. Unfortunately, despite the law’s seemingly good intentions, the implementation by the state was woefully deficient. Five years later, the lack of adequate personnel, and the lack of adequate documentation in the agency’s files still hamper the ANRP from providing timely decisions or even polite responses to claimant inquiries.
Another significant step was the adoption of Government Emergency Ordinance no. 81/2007, which provided the possibility for those who had already obtained restitution “titles” to opt for compensation in cash up to a limit of 500,000 RON, or accept compensation offered in shares in Fondul Proprietatea. But in practice, the system remains decidedly deficient because of budgetary constraints limiting the amount of payments that can be made in any given year. And now, since July 1, 2010, when Government Emergency Ordinance no. 62 entered into effect, the issuance of payment titles has been suspended for two years, meaning that those persons who receive restitution titles may either receive shares in the Property Fund or wait for another two years until their payment titles can be issued. Needless-to-say, no one can predict when the actual payments might be made in the future. Those who opted to receive shares in Fondul Proprietatea remain in the same position of not being able to actually benefit from their restitution award because the Fund cannot provide for effective compensation until it is listed on the stock exchange. That listing is now planned for late January 2011.
The Pilot Judgment
In light of the sizeable number of past ECHR decisions that have sanctioned the Romanian state for its inability to put in place a proper and effective restitution and compensation mechanism, in February 2010, the ECHR began consideration of the possibility of applying its pilot procedure against Romania in two cases concerning the immovable property abusively taken by the Romanian communist regime in the period between March 6, 1945 – December 22, 1989. One might have thought that this step would have spurred action on the part of the Romanian government, but it didn’t. So, on October 12, 2010, the ECHR issued its judgment against Romania.
Brief Overview over Pilot Judgments issued by the ECHR
Pilot decisions of the ECHR identify controversial legal issues faced by a large number of citizens of a particular state who have sought remedies from the Court against a state which has been unwilling or unable to provide them with a proper remedy. Pursuant to this procedure, the ECHR issues a decision in situations which have generated multiple actions before the Court, attesting to the dysfunctions of the legal system of the country in question. A pilot decision indicates the general measures which must be taken in order to eliminate the problems that generated the large number of cases before the Court. Once the pilot decision is adopted by the ECHR, all similar cases on the docket of the Court are suspended until the state against which the decision was issued adopts the necessary measures needed to remedy the situation.
Brief Presentation of the Pilot Judgment in Maria Atanasiu and Others
The case of Maria Atanasiu and Others vs. Romania refers to the restitution of properties confiscated by the communist state, and it mainly concerns the applicants’ alleged inability to obtain access to a court in order to claim ownership of a nationalized apartment, and the delay on the part of the administrative authorities in ruling on the restitution request.
In this case, the Court decided that article 6 (1) of the European Convention on Human Rights, i.e. the right to a fair hearing within a reasonable time, and article 1 of Protocol 1, i.e. the protection of property as a human right, were breached, and it compelled Romania to take all necessary measures in order to guarantee the rights of its citizens to have the properties abusively taken by the communist regime speedily returned.
In the Pilot Judgment, the Court invoked the large number of claims on the same matter submitted to the ECHR, and noted the fact that, despite its repeated sanctions, Romania had still not found a proper way of solving the structural problems inherent in its restitution and compensation system. Because a pilot judgment is rendered in order to provide assistance to the state in question to solve its structural problems at the national level, the Court actually expanded its investigation beyond the case of the individual applicants in the interest of other similarly or potentially affected persons with the same problems. Prior to this Pilot Judgment, the Court had issued other decisions establishing Romania’s infringement of article 6 (1) and article 1 of Protocol 1, reflecting the shortcomings of the Romanian system of compensation and restitution.
Some of the decisions issued by the ECHR reflected the overburdening of the authorities charged with jurisdiction over restitution claims and, consequently, their inability to grant effective restitution to the claimants. For example, the Court noted that by May 2010, out of a total of 68,355 files registered with the Central Compensation Commission in Romania, only 21,260 had resulted in a decision awarding a “compensation title”, and fewer than 4,000 payments had actually been made.
The Court also determined that while Romania’s restitution scheme undoubtedly represents a cost to the state budget, the listing of Fondul Proprietatea on the stock exchange might perhaps reduce the requests for payment in cash from claimants and, consequently, diminish the pressure on the state budget.
Effects of the Pilot Judgment
Through its Pilot Judgment, the Court ordered that simplified and effective procedures be put in place as a matter of urgency, based on legislation and a coherent administrative and judicial practice, to ensure the speedy resolution of thousands of pending claims for restitution by aggrieved claimants.
As the Pilot Judgment is aimed at creating a plan to allow for the rapid redress at the national level for all persons affected by the structural problem identified by the Court, the Pilot Judgment also ordered that the investigation of all similar cases would be postponed pending the adoption by the Romanian state of general measures targeting the remedy of the issues in question. In this specific case, in view of the large number of applications concerning similar issues, the court decided to suspend the examination of all similar files for a period of 18 months, during which period the Romanian state has been directed to adopt all the necessary measures capable of providing adequate redress to all persons covered by Romania’s restitution legislation.
However, the court did not impose upon the state any specific measures that need to be taken. It is the Romanian state’s obligation to find the most appropriate solution, adopt the necessary measures, and afterwards implement them. While supervising the implementation of the ECHR Pilot Judgment, the Committee of Ministers of the Council of Europe may issue interim resolutions or decisions expressing concerns, and encouraging or making suggestions with regard to the execution of the judgment. If the Committee determines that, in the end, Romania has not fulfilled its obligations set forth in the Pilot Judgment, then the state will be notified and Romania may be required to withdraw from the Council, its representation may be suspended, or it may be expelled.
Although no prior decision issued by the Court over the years against Romania has managed to trigger any substantial effort by the state to remedy the restitution backlog, the immediate effect of the Pilot Judgment is quite to the contrary. Since the state is now bound by a deadline of 18 months to adopt measures that will remedy the deficiencies of the restitution system, the prime minister himself told the media that the Government will carefully analyze the Pilot Judgment and, afterwards, will decide what measures must be undertaken in order to fully comply with it.
Even though the Court did not direct which measures are to be taken by the Romanian state, the Pilot Judgment refers to certain dysfunctions in the restitution and compensation system which should be considered by the national authorities. The Court provided that the Romanian state should take measures to remove all obstacles to the effective exercise of the right to restitution and provide appropriate redress mechanisms for claimants. For instance, the Court considered that the harmonization of the current legislation would represent a step in the right direction, but only if accomplished by instituting simplified procedures that would allow claimants to have their files resolved in shorter periods of time and more professionally. Actually, one of central dysfunctions of the system, emphasized as such by the Court, is the lack of the functionality of the institutions involved in the restitution process, such as the ANRP and the Central Compensation Commission. Unfortunately, claimants still have to wait for inordinate periods of time until they receive answers from the ANRP. Such institutions, as well as the local authorities which are empowered to resolve restitution claims for immovable property, should be provided with the necessary budget, as well as with specialized personnel, allowing them to resolve claims timely and efficiently. The absence of time limits for the processing of files is another weak point in the domestic compensation mechanism. The Court had repeatedly recommended that Romania institute procedures to examine restitution claims within a “reasonable time” and in chronological order, so as to avoid discrimination and injustice to those who are seeking to exercise their rights.
It is truly a sad state of affairs when a nation that has taken honorable steps to provide real restitution to the victims of communism is sanctioned by the European Court of Human Rights for what, in effect, amounts to incompetence and indifference in the administration of such compensation. After years of ignoring the urgency of this problem and the distress of the thousands of victims awaiting justice, Romania has been slammed by the ECHR through its virtually unprecedented Pilot Judgment. The judgment of the ECHR is a badge of shame instead of the emblem of honor that Romania could have expected for its restitution program had it acted reasonably and speedily. Romania has eighteen months in which to prove to the Committee of Ministers of the Council of Europe, under whose direct supervision measures to speed up the disposition of restitution claims must be taken, that, after 20 years of ineptitude, Romania is finally on the right track. The alternative is unacceptable. It is the appalling image of even further ineptitude, and the risk of Romania being suspended or even expelled from the Council of Europe -- tribulations which Romania can ill afford to suffer.
The article was published based upon approval of:
Rubin Meyer Doru & Trandafir
SOCIETATE CIVILA DE AVOCATI / LAWYERS PROFESSIONAL CORPORATION
IN ASOCIERE CU / AFFILIATED WITH HERZFELD & RUBIN, P.C.