Abstract
In this chapter I argue that strategic privatisation policies were preferred to restitution by post-communist CEE governments. These policies were independent of the political colour of the respective governments, since executives dominated by former communists, as in the case of Romania, could enact wide privatisation legislation at the beginning of transitional period, in a similar fashion as governments dominated by a more ‘liberal’ outlook, somewhere else in the region. Using the examples of Romanian and Poland, two countries which followed the other ends of the restitution spectrum in Central Eastern Europe, I also argue that restitution, a legal institution that it was already in the Civil Codes of the CEE countries, did not need any particular legislation in order to be implemented by the courts. However, when local or national politicians refuse to implement court decisions’ to restitute property to the former owners, as in the case of Romania, there is not much that international judicial bodies or (even) the European Court of Human Rights could do. Finally, I argue that what is termed as ‘post-communist restitution’ should be analysed from the perspective of the policies distributive or transformational of the regimes of property followed by CEE governments at the onset of transition in the region, and not as a standalone legal institution. Seen this way, the failures of restitution in the region point towards the failure of transitional measures aiming at privatising state property in CEE, rather than toward a breakdown of restitution as transitional justice mechanism.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
See e.g. Gelpern (1993), Appel (2000), discussing the role of ideology and ideas in shaping different privatisation programmes in post-communist CEE and in the former USSR; Appel (2005), exploring ideological influences in shaping different retrospective justice programmes in post-communist Central Europe; Mungiu-Pippidi and Stefan (2012, 1).
- 2.
See generally Kuti (2009, 112–202). Such commonalties are all related to the negative side of restitution schemes, most importantly to the selective treatment of the victims entitled to compensation, and as a consequence of such selectivity, to the breach of the principle of equality among the victims.
- 3.
Blacksell and Born (2002, 179).
- 4.
Yin (2003, 10).
- 5.
See e.g. Stan (2006).
- 6.
- 7.
- 8.
Former Minister of the Czech government for privatisation and management of national assets, former chairman of the National Property Fund and former member of Parliament of the Czech Republic.
- 9.
Tomáš Ježek, ‘Privatisation,’ in ‘Transformation: The Czech Experience,’ Human Rights and Democracy Department of People in Need, Czech charter, 2005, available online at http://www.mzv.cz/file/582145/anglicka_verze.pdf (last visited November 2015). In terms of consequences, not far removed from the Romanian ones, see e.g. Milan Sojka, ‘Czech Transformation Strategy and its Economic Consequences: A Case of an Institutional Failure (or the Economic Consequences of Mr. Klaus),’ online at: http://src-h.slav.hokudai.ac.jp/sympo/03september/pdf/Sojka_Milan.pdf (last visited November 2015).
- 10.
See e.g. Dawidson (2005).
- 11.
Reich (1964). I refer here only to what Reich called ‘new property,’ not to the normative points he made in the respective article.
- 12.
Vanhuysse (2006).
- 13.
Cerami and Vanhuysse (2009).
- 14.
Supra, Chap. 5.
- 15.
See e.g. Kim Lane Scheppele, ‘Democracy by Judiciary (Or Why Courts Can Sometimes Be More Democratic than Parliaments),’ in Czarnota et al. (2006).
- 16.
Although remarkable because of the multiplicity of the ECtHR rulings in matter related to ‘restitution,’ the Romanian experience is not singular across the region. Albania came close to this experience, as well as other former communist countries from South Eastern Europe, or countries from the former Soviet space. See e.g.: Case of Çaush Driza v. Albania, Application no. 10810/05, ECHR–IV, Judgment of 15 March 2011; Vrioni and Others v. Albania and Italy, Nos. 35720/04 and 42832/06, ECHR Judgment of 29 September 2009; Driza v. Albania, Application No. 33771/02, ECHR Judgment of 13 November 2007, Ramadhi and Others v. Albania, Application No. 38222/02, ECHR Judgment of 13 November 2007; Burdov v. Russia, No. 59498/00, ECHR 2002-III).
- 17.
For the ‘rule of law’ implications of non-enforcement, see e.g. Maria Atanasiu, infra.
- 18.
- 19.
See e.g. Allen (2006), discussing the anachronistic view of the ECtHR that a prosperous “future” would vindicate all the transitional justice problems related to restitution; Pogány (2010), discussing the problems posed by the fragmented ways in which other international quasi-judicial bodies treat restitution.
- 20.
Sajó (1990).
- 21.
See e.g. Kuti (2009, 128, and 152–204), discussing the arbitrary treatment of movables and immovables, and the discriminations between citizens and non-citizens enacted into the post-communist restitution schemes.
- 22.
- 23.
See e.g. Ganev (2007), discussing the problems created in Bulgaria by such ‘decentralisation’, as it was done in the absence of the normative framework that could impede the appropriation of state assets by former communist apparatchiks.
- 24.
See e.g. Van der Walt (2009, VIII), discussing the application of rule of law in matters related to property in the South African transition.
- 25.
- 26.
See Van Boven Report (n 27 in Chap. 5).
- 27.
- 28.
- 29.
The ‘Salvation Front’ was mostly filled with former communist party’s members. A general overview of the politics of the period is provided by Gallagher (2005).
- 30.
Decree-Law No 61/1990, published in the Official Monitor No 22 of 8 February 1990. After a 2 years subsequent debate in the Romanian Parliament, the Decree Law 61/1990 was modified and completed in 1992, by the Law No 85 of 22 July 1992, published in the Official Monitor No 180 of 29 July 1992, regarding the sale towards population of housing and spaces with other destination than housing from the State Fund and the State economic units, and again in 1994, by the Law No 76/1994, published in the Official Monitor No 260 of 15 September 1994, and in 1997, by the Law No 79/1997, published in the Official Monitor No. 264 of 15 July 1998. In this chapter, when indicating the Official Gazettes in which the Romanian legislation mentioned it was published, I followed the Romanian conventions, where just a general citation of the Official Gazzette (in Romania, this legislative publication is called ‘Official Monitor’) is provided, and not the page.
- 31.
In 1992 for example, the price of a two bedrooms apartment built in a ‘dormitory block’ was the equivalent of the median salary for approximately 4–6 months. In 1989, by contrast, the minimum price of such an apartment was the equivalent of the median salary for 30–40 months. Bought on the ‘free market’ in 1992, such an apartment had a price which was the equivalent of 40–60 months of the average monthly salary.
- 32.
Stan (2006, 186–7). This was one of several reparatory measures taken in the first months after the Ceausescu’s regime fall by the Salvation Front, despite the criticism of the opposition, organised around the re-established inter war political parties, which preferred to wait for national elections before taking wide measures affecting the communist organisation of property, and strongly favoured the restitution in integrum of property to former owners.
- 33.
Held in May 1990.
- 34.
Stan (2006).
- 35.
See e.g. Socaciu (2007) arguing that the real number of such tenants was and still is unknown, with estimations varying between two and three million persons.
- 36.
This argument was used widely later, by the representatives of tenants living in nationalised houses, or by MP’s sympathetic to their views. For a restatement of such arguments, see Stan (2006, 193).
- 37.
Even if arguably, fewer people belonged to this category than to the other two. Practically, if we divide tenants in categories, one category lived in dormitory blocks built during communism and administered by the state, another category lived in nationalised flats, also administred by the state, and another category lived in flats rented from private owners.
- 38.
The tenants rented from the private market were excluded from the application of the Law 112/95, the major piece of legislation allowing ‘state tenants’ to buy the flats they rented in nationalised houses.
- 39.
Some of the restrictive Ceausescu era enactments, which placed interdictions related to ownership, were removed in the first months after the fall of the communist regime.
- 40.
Probably less than 20 % of the Romanian population lived as tenants in state apartments and could qualify to buy such apartments under the provisions of the decree (Romanian Institute of Statistics, 2008).
- 41.
See the Legislative Process file of the Law No 15/1990, Senate PL no L69/1990, online at: http://www.cdep.ro/pls/proiecte/upl-pck.proiect?idp=290&cam=1 (last visited December 2015). In comparison with the deliberation needed for the adoption of Law no 18/1991, the first (mostly) restitution law, which were more than three time longer, the Law No 15/1990 was adopted in less than 3 months. Nevertheless, Law 15/90 had far-reaching effects, as it affected what it could be termed as industrial property, and all the corporate entities existing at the time in Romania.
- 42.
Law No. 15 of 7 August 1990, published in the Official Monitor No. 98 of 8 August 1990. It took more than a year until the government was able to approve the norms implementing the articles of the Law No 15/1990 related to terrains. See the Government Decision No 834 of 14/12/1991 in application of the Article 19 and 20 of the Law no 15/1990, Regarding the establishment and evaluation of some terrains hold by the commercial societies with state capital, published in the Official Monitor of Romania No 259 of 20.12.1991. During the subsequent two decades, this law suffered numerous amendments and modifications, which I will not comment on detail, as the commentaries of this law would greatly exceed the scope of my analysis. I should only note here that in its general lines, the law remained the same.
- 43.
Practically every object of property found in the patrimony of a socialist state enterprise was directly transferred to a ‘new’ corporate entity, irrespective of the modality in which the respective good entered into the hands of the state.
- 44.
Sabau-Pop and Puie (2008).
- 45.
A suggestive term evoking the practical consequences of such law would be ‘spurious privatisation.’ See Stephan (1996, 184).
- 46.
See e.g. Briffault et al. (2001).
- 47.
See e.g. Romanian Constitutional Court Decision no 151 of 17 March 2005, published in the Official Monitor No 444 of 25 May 2005 (deciding the character of the dispositions of the law 15/90 which transferred to the state entities property nationalised, confiscated or expropriated de facto by the state, in the absence of the communist state decrees, and for which no compensation was provided); Romanian Constitutional Court Decision No 250 of 18 September 2001, published in the Official Monitor Part I No 746 of 22 November 2001, the Romanian Constitutional Court Decision No 155 of 12 October 1999, published in the Official Monitor, Part I, No 600 of 8 December 1999, and the Romanian Constitutional Court Decision No 112 of 9 November 1995, published in the Official Monitor, Part I, No 9 of 17 January 1996.
- 48.
Decision No 151 of 17 March 2005, cited above.
- 49.
Romanian Constitutional Court Decision No 250 of 18 September 2001, and Decision no 151 of 17 March 2005.
- 50.
Ibid.
- 51.
Romanian Constitutional Court Decision No 112 of 9 November 1995 and Decision no 151 of 17 March 2005.
- 52.
See supra for some of the modifications of the Decree Law No 61/90.
- 53.
In the ‘rights’ language of the Constitutional Court, the previous ‘right of direct administration,’ which was the attribute of communist estates, as we have seen in the fourth chapter, was replaced by a “right of private property”.
- 54.
I.e. attempting to terminate the rental contract because the tenant did not work any longer for the company and she was not entitled to rent the respecting flat.
- 55.
Takings that would run against the provisions of the Romanian Constitution of 1991.
- 56.
Romanian Constitutional Court Decision No 27 of 23 May 1994, published in the Official Monitor, Part I, No. 143 of 6 June 1994.
- 57.
Ibid.
- 58.
Ibid.
- 59.
Ibid.
- 60.
Ibid.
- 61.
Ibid.
- 62.
Ibid.
- 63.
Law No 18/1991, published in the Official Monitor of Romania, Part I. No. 37 of 20 February 1991. For an excellent description of political and social backgrounds of the law’s enactment, and for some of its implications see Verdery (2003, 90–115). Also Andrew Cartwright, ‘Reforming Property Law in Eastern and Central Europe,’ in Cooke (2001, 341–356).
- 64.
In Romania these were known as Cooperativa Agricola de Productie (agricultural cooperative of production), or CAP in the common parlance. The State Farms were known as Intreprinderi Agricole de Stat (Agricultural State Enterprises) or IAS, in the common parlance. I kept Katherine Verdery’s English acronyms, CF-collective farms, and SF-state farms, not only for their shorthand value, but also because I considered them suggestive for the distinct legal characteristics of these two different modes of organisation of the exploitation of agricultural land in communist times. For a more detailed discussion on what these mode of organisation entailed, see e.g. Verdery (2003, 52).
- 65.
Art. 48 of the Law 18/1991.
- 66.
- 67.
Art 8 of the Law 18/1991 combined with article 14 and 15 of the Law. Such categories included the victims of the 1989 Romanian Revolution (receiving 1 ha, and tax exemption): persons employed by the CF between 1987–1990 if they had permanent residence in the radius of the village were CF existed; local civil servants (up to 0.5 ha); or, if something was left after re-distribution of the CF land, to any family which intended to move permanently in the commune (up to 10 ha).
- 68.
See e.g. Verdery (2003).
- 69.
Law No 169/1997.
- 70.
Law No 1/2000. See also Viaşu v. Romania, infra, paragraphs 30–46, for a discussion of the successive modifications of the Law 18/1991.
- 71.
Ibid.
- 72.
Law No 247/2005. Also Viaşu v. Romania, paragraphs 30–31, noting more than 70 modifications of the Law No 18/1991 until 2009.
- 73.
More than 1 million cases in the 1990s, accordingly to Verdery (2003).
- 74.
- 75.
- 76.
See e.g. Verdery (2003, 190–228), for a description of the social causes which impeded the peasants receiving land to work such land during the first post-communist decade.
- 77.
Verdery (2003, 310–345).
- 78.
Viaşu, op. cit, paragraph 40.
- 79.
Comisso (1995). In Romania no such deal could be broken, successive governments formed by communists and opposition ignoring in part the earlier governments’ enactments when enacting major amendments to agricultural land ‘restitution’ (at least once during each electoral cycle).
- 80.
Law No XXV of 26 June 1991 (To settle ownership conditions, for the partial indemnification of damages caused by the state to the property of citizens), translated and reproduced with article by article analysis in Kritz (1995, 751–768).
- 81.
Comisso (1995, 201).
- 82.
Ibid. Well over 6 months in comparison with 2–3 months for the adoption of most legislation.
- 83.
Comisso (1995, 201).
- 84.
- 85.
The acceptability of such compromise refers evidently to the politicians’ mindset and not to the general population.
- 86.
Comisso (1995, 201). I rely here on Commisso’s description, which is focused on the political debates surrounding the compensation laws enactments. However, it is debatable how the ‘token’ Hungarian compensation law satisfied the victims of communist state interference with their right of property (I owe this clarification to István Pogány).
- 87.
Comisso, Ibid.
- 88.
Ibid.
- 89.
- 90.
Accordingly to the Hungarian Justice of Ministry, the Compensation Act produced well under thirteen thousand litigation files, probably 1 % of the number of cases produced by Law 18/90 in Romania. Thus “Act XXV of 1991 the compensation authority received 847,798 claims. From this, decisions, on 2nd degree was adopted—as a result of appeal—in 13,134 cases, and following that there were judicial reviews in 584 cases.” Dr. Anikó Boross, Ministry of Justice and Law Enforcement (File. no.: IRM/IKSZFO/KÁRP/1922-2/2010) personal communication, on file with the author.
- 91.
Of the legislation by a local administration composed of the former communist technocracy.
- 92.
This non-agricultural property consisted only in terrains, flats, or buildings, which were confiscated or expropriated by the communist regime without a ‘valid title’ in the late 1940s, or later during the communist period. The industrial property was excluded, as it was expropriated or confiscated following explicit communist decrees.
- 93.
See supra, introduction to this chapter.
- 94.
Without ‘legal title’ means for example an administrative act of takings in contradiction with the Laws or Decrees of nationalisation, or which exceeded the powers conferred by such laws or decrees to local administrative authorities to accomplish the takings. In the former cases, the continental law doctrine of ‘excess of powers’ corresponding to the French law ‘excès de pouvoirs’ allowed the courts to annul the administrative decision of taking and to put the parties in the position similar to that when the act did not occur.
- 95.
When Law No 4/1973 introduced a takings regime without compensation of the residences of the persons leaving the country.
- 96.
Stan (2006, 9).
- 97.
Ibid.
- 98.
Ibid.
- 99.
Such difficulties are expressed in the Czech Context by the ECtHR decisions finding a violation of the Convention in cases related to the eviction of those acquiring ownership rights under socialism and evicted post 1989 by former owners. See e.g. Case of Pincová and Pinc v. the Czech Republic, Application no. 36548/97, Judgment of 5 November 2002; Case of Bečvář and Bečvářová v. the Czech Republic, Application no. 58358/00, Judgment of 14 December 2004. The singular case when the ECtHR accepted a blanked reversal of communist acquisition of property is represented by the Case Jahn and others v. Germany, App. Nos. 46720/99, 72203/01, 72552/01, Eur. Ct. H.R. (2004) (Third Section), Eur. Ct. H.R. (2005) (Grand Chamber), available at http://www.echr.coe.int/echr. For an extensive discussion of Jahn in the context of post-communist transitional policies related to property, see Allen (2006).
- 100.
That the good faith doctrine has its own conceptual problems is shown for example by Levmore (1987).
- 101.
See e.g. para. 24, Păduraru v. Romania, no. 63252/00, ECHR 2005-XII.
- 102.
Stan (2006, 187–195). See also, the Romanian Constitutional Court Decision No. 6 of 11 November 1992 regarding the constitutionality of some dispositions of the Law (project) concerning preparatory measures for the regulation of the juridical situation of some immovable taken by the state after 23 August 1944, Published in the Official Monitor of Romania, Part I, No 48 of 4.03.1993; Valerian Stan’s, the former chief of the Governmental Department of Control, detailed report containing a long list of post 1989 state officials who bought nationalised houses by fraud, including the findings of the Romanian Parliament and Government’s commissions of inquiry (1994–1997) on such practices and arguing that the inability to pass legislation was due to the interests of the former nomenklatura and the newer elite to buy such properties at highly subsidised prices online at: http://www.valerianstan.ro/1._De_la_Departamentul_de_Control_al_Guvernului.pdf (last visited August 2014).
- 103.
Not dissimilar to Poland. See e.g. Stan (2006).
- 104.
There are no reliable Romanian statistics of the number of lawsuits initiated by the former owners of nationalised immovable property in early 1990s, respectively statistics of the number of successful such lawsuits.
- 105.
Transferring the state property to the patrimony of newly organised enterprises, even in the case when the property was held by the state with a disputable title. On these aspects, see the earlier discussion on the Romanian Law No 15/1990.
- 106.
See para. 32–33, Brumărescu v. Romania [GC], no. 28342/95, ECHR 1999–VII. This so called rule, known as the ‘Recurs in anulare’ (Recourse in annulment), was introduced into the Code of Civil Procedure by the modifications of the Code enacted in 1993, and eliminated a decade later, at the pressure of the EU, by the Government Emergency Ordinance No. 58/2003, approved and modified by the Parliament by Law No 196/2004.
- 107.
Romanian Supreme Court Decision No 1 of 2 February 1995, published in the Official Monitor No 177 of 8 August 1995, reprinted in Baias et al. (2001, anexa IX, p. 204). For a brief discussion of this decision in English, see e.g. para. 37 Brumărescu v. Romania, op. cit. For the previous practice of the Supreme Court in the respective matter see e.g., para. 36, Brumărescu v. Romania, and Păduraru v. Romania, op. cit.
- 108.
See e.g. para. 37 Brumărescu v. Romania, op. cit.
- 109.
Ibid.
- 110.
- 111.
Law No 112/1995, ‘pentru reglementarea situaţiei juridice a unor imobile cu destinaţia de locuinţe, trecute în proprietatea statului’ (For the regulation of the juridical situation of some immovable properties destined as dwellings, taken in the state property), published in the Official Monitor of Romania, Part I No. 279 of 29 October 1995.
- 112.
Respectively following the ‘lawful’ execution of the communist regime’s own takings decrees, whose legality was presumed, and not questioned.
- 113.
See for example the Article 1 of the Law 112 providing that: “The former owners, physical persons, owners of the buildings assigned as residential dwellings, and taken as such into state ownership or other juridical persons’ ownership after 6 March 1945, with title, and which were in possession of the state or other juridical persons’ as of 22 December 1989, are benefiting from the reparatory measures provided by the present law. For a more extensive translation of the articles of the L 112/1995, see also para. 40 Brumărescu v. Romania, op. cit.
- 114.
See Article 9 of the Law 112/95, providing that the tenants of the apartments that were not restituted in integrum to the former owners could opt out to buy such apartments, in more favourabe conditions than any other enacted later for persons seeking to buy a house. For the point that many of the political leaders that promoted and voted the law took benefit of it as they inhabited and bought protocol houses that had been nationalised during the communist era see e.g. Stan (2006).
- 115.
See e.g. Dawidson (2005, 546), arguing that post-communist governments dominated by the left favoured across the CEE the sale of the State-owned housing towards tenants, at a price representing in general 10/100 % of the market value and that the Romanian legislature preference for tenants was not extraordinary or out of a common pattern. For arguments that such sales favoured the former nomenklatura and the new elites with connections enabling them to receive priority in the allocation of high quality public housing, see e.g. Pasti (1997), R. J. Struyk, ‘Housing privatization in the former soviet bloc to 1995,’ in Andrusz et al. (1996, 200–206), Szelényi (1983, 67–79).
- 116.
Three groups of the deputies and senators belonging to the opposition parties, and making together more than a quarter of the total number of Parliamentarians filed separate actions, in a rather unusual large challenge of a law passed by the Parliament, judged on Romanian standards. See § 1 Romanian Constitutional Court Decision No. 73, below.
- 117.
Romanian Constitutional Court Decision No. 73/19 July 1995, § 1–2. Although the issue is purely theoretical, it is interesting to speculate that had such proposals of the opposition been enacted by the Romanian legislator, probably the ECtHR would find them as running against the European Convention, as such enactments would be similar to the Polish disposition criticised by the European Court in Hutten-Czapska v Poland, [GC] No. 35014/97, ECHR 2006-VIII,45 EHRR 4.
- 118.
See § 1 Romanian Constitutional Court Decision No. 73 of 19 July 1995 regarding the constitutionality of some dispositions of the Law 112/95 for the regulation of the juridical situation of some immovable properties assigned as dwellings, taken in state property, published in the Official Monitor of Romania, Part I No 177 of 8.08 1995.
- 119.
Decree No. 92 of 19 April 1950 for the nationalisation of some immovable(s), published in the Official Bulletin of Romania, No 36, of 20 April 1950.
- 120.
Romanian Constitutional Court Decision No. 73. § 2,3.
- 121.
Ibid.
- 122.
Ibid. § 7–8.
- 123.
Ibid. § 8–9.
- 124.
Ibid. § 11–12.
- 125.
Ibid. § 13–14.
- 126.
Ibid.
- 127.
The Government response however was more nuanced, and susceptible of a larger interpretation, as it sustained that even if admitting that the Decree 92/1950 was illegal, or that in its execution the communist authorities overstepped the boundaries of the legislation enacted by the communist parliament, subsequent communist legislation filed the gaps of this decree and ‘regularised’ the takings done under this decree.
- 128.
See e.g. the Romanian Constitutional Court Decisions No. 3/1993, and No. 62/1995.
- 129.
Para 1 Romanian Constitutional Court Decision No. 73. The court also suggested that although the foresaid legislation might be illegal under the communist constitution and legislation in force, the effects created by such legislation being already consumed at the adoption of the Romanian Constitution of 1991, preference for the appearance created by them and for the stability of the juridical reports established under their ‘imperium’ (application) should be given as a matter of good policy.
- 130.
Respectively on the lawful application of the communist decrees of nationalisation.
- 131.
The words ‘without title’ disappeared from the text of the Law 112, as a result of the unconstitutionality of such provision decided by the Constitutional Court.
- 132.
The text operating the exclusion also disappeared from the final version of the law as a result of unconstitutionality of decided by the Constitutional Court.
- 133.
Hotarare Nr. 20 din 17 ianuarie 1996, pentru stabilirea Normelor metodologice privind aplicarea Legii nr.112/1995 (Government Decision No. 20/ of 17 January 1996, for the establishment of the methodological norms implementing the Law no. 112/1995), published in the Official Monitor of Romania Part I, No 16 of 23 January 1996. See also para. 21. Străin versus Romania, op. cit. The decision was amended and supplemented in the same year, by Government Decision No. 1011 of 22 October 1996 published in the Official Monitor of Romania No. 263 of 28 October 1996.
- 134.
- 135.
See e.g. Păduraru, op. cit., para 25; Suciu Arama v Romania, No. 25603/02, Judgment of 9 November 2006, available on French on the Court's website.
- 136.
This preference of the ‘state,’ reflected in fact the preference of the ex-communists dominating the Romanian legislative and the executive during the first 6 years of post-communist ‘transition.’
- 137.
See e.g. Stan (2006, 194–95), arguing that the ‘opposition’ prominent figures had a vested interest to sit with the tenants against the owners.
- 138.
As I have shown, the former communists dominating the Romanian parliament in the early post-communist years, mostly ignored the preferences of the leading parties of this coalition, such as the Christian Democratic National Peasants Party, for in kind restitution to former owners, during the previous electoral cycle.
- 139.
Hotarirea Guvernului nr.11/1997 pentru modificarea şi completarea Normelor metodologice privind aplicarea Legii nr.112/1995 pentru reglementarea situatiei juridice a unor imobile cu destinatia de locuinte, trecute in proprietatea statului, stabilite prin Hotararea Guvernului nr.20/1996 (Government Decision No 11/1997 modifying and supplementing the methodological norms for application of the Law No 112/95, established by Government Decision No. 20/1996), published in the Official Monitor of Romania No. 27 of 18 February 1997. See also para 22 of Străin vs Romania, acknowledging that: “Paragraph 1 (3) of decision no. 11/1997 provided that, in order for property to be defined as having been acquired by the State under Decree no. 92/1950, it had to have been acquired in accordance with the decree and the person referred to as the owner in the lists enumerating nationalised property had to have been the true owner at the time of the nationalisation.” For the implication of this Governmental Decision see also paras. 27–28, Păduraru vs Romania, op. cit, and Baias et al. (2001).
- 140.
Legea nr.213 din 17 noiembrie 1998 privind proprietatea publică şi regimul juridic al acesteia (Law No. 213 of 17 November 1998, on the public property and the juridical regime applicable to it), published in the Official Monitor of Romania, Part I No 448 of 24 November 1998. The relevant Article 6(1) of the law provided that “Property acquired by the State between 6 March 1945 and 22 December 1989, provided that it passed into State ownership by virtue of a valid title, that is to say in a manner not contrary to the Constitution, to international treaties to which Romania was a party or to any legislation in force at the time of its transfer to the State, shall likewise form part of the public or private property of the State or other public authorities.” Para. 31 Străin vs Romania, op. cit.; C.Ap. Brasov, s.civ, dec Nr. 190/1996 in Culegere de practica judiciara 1996.
- 141.
Law No. 213 of 17 November 1998.
- 142.
Romanian Supreme Court Decision (United Sections) of 28 September 1998, reprinted in Baias et al. (2001), vol. II, anexa IX/B, p. 218.
- 143.
Baias et al. (2001, 218).
- 144.
Lege Nr.10 din 8 februarie 2001, privind regimul juridic al unor imobile preluate în mod abuziv în perioada 6 martie 1945–22 decembrie 1989 (Law No. 10 of 8 February 2001, regarding the legal regime of some immovable taken abusively in the period 6 March 1945–22 December 1989), published in the Official Monitor of Romania, Part 1, No. 75 of 14 February 2001. The law suffered numerous modifications and amendments in the first decade of its application. Moreover, since 2003 when the first case related to this law was decided by the Romanian Constitutional Court in the ex post control of constitutionality, the Constitutional Court issued 339 rulings related to this law (indications of cases available on the Romanian Chamber of Deputies website at: http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida=27740&pag=2).
- 145.
Which, accordingly to the delegation provided by the Parliament, should be issued by the government.
- 146.
For a background of the political ‘implementation’ of the law, see e.g. Stan (2006, 195–199).
- 147.
Legea nr.247 din 19 iulie 2005, privind reforma în domeniile proprietatii si justitiei, precum si unele masuri adiacente (Law No 247 of 19 July 2005, regarding the reform in the fields of property and justice and some adjacent measures), published in the Official Monitor of Romania, Part 1 No 653 of 22 July 2005.
- 148.
See e.g. para 60–67, Maria Atanasiu and Others v. Romania, Applications nos. 30767/05 and 33800/06, ECHR Judgment of 12 October 2010.
- 149.
See title VII of the Law No 247/2005, and the Government Decision No. 1481/2005 for its implementation.
- 150.
See paras. 32–34, Radu v Romania, No 13309/03, Judgment of 20 October 2006 (available in French); paras. 16–20 Tudor v. Romania, no 29035/05, Judgment of 17 April 2008 (available in French); para 44–67, Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, Pilot Judgment of 12 October 2010, Also for the statistics of ‘Proprietatea’ fund and the payment of claims of compensation see para 77–80, case of Maria Atanasiu and Others v. Romania.
- 151.
See e.g. Cotidianul, 6.03.2009, Blocaj pe termen nelimitat la fondul proprietatea (Blockage for unlimited term at the proprietatea fund), noting the postponement of the Commission Fund manager selection; FrontNews.ro, 12.11.2008—Fondul proprietatea Ameninta top 100 angajatori (Property Fund is menacing top 100 best employers), noting that the excessive and undeclared executives’ salaries Fondul Proprietatea were raising a public scandal; Evenimentul Zilei, 17.09.2008 (La fondul proprietatea salariile se umfla continuu-at property fund the wages are ballooning continuously)—discussing the poor performance of the fund, while the salaries of the employee continued to inflate; Cotidianul, 18.06.2008—(Sefa fondului proprietatea, salariu la secret de 17,000 de euro-the chief of property fund, salary of 17,000 euros declared secret) discussing the nepotism and huge salaries for the head of the fund, the godmother of the Interior minister.
- 152.
See e.g. Curierul Naţional, 10.06.2005 (Statul nu garanteaza Fondul Proprietatea-The State does not warrant the Property Fund), noting that the formula proposed by the Government to pay compensation to former owners of nationalised properties that cannot be returned in kind, was strongly contested by potential beneficiaries, and was met with skepticism even by the Ministry of Finance. Gândul. 09.10.2006—(fostii proprietari sint nemultumiti de solutia despagubirii prin actiuni-the former owners unhappy with restitution in shares); Gândul, 23.10.2007 Summary (fondul proprieateta, de 5 ori mai mic decat suma despagubirilor—the fund is 5 time smaller than the total amount of the compensation).
- 153.
See e.g. para 40–46 Viaşu v. Romania.
- 154.
See e.g. Ziarul Financiar 30.07.2009 (Statul nu mai are bani pentru fondul Proprietatea-the state does not have money for the property fund), noting that the Parliament and the executive were attempting to find solutions to compensate the former but many obstacles remained.
- 155.
See e.g. Viaşu v. Romania, no. 75951/01, 9 December 2008; Faimblat v. Romania, no. 23066/02, 13 January 2009; Katz v. Romania, no. 29739/03, § 11, 20 January 2009; Tudor Tudor v. Romania, no. 21911/03, 24 March 2009.
- 156.
See para. 231–236. Maria Atanasiu and Others v. Romania, op. cit.
- 157.
Legea 1 din 30 ianuarie 2009, pentru modificarea si completarea Legii nr. 10/2001 privind regimul juridic al unor imobile preluate in mod abuziv in perioada 6 martie 1945–22 decembrie 1989 (Law No 1 of 30 January 2009, for the modification and completion of the Law 10/2001 regarding the juridical regime of some immovable properties taken abusively by the State in the period 6 March 1945–22 December 1989), published in the Official Monitor of Romania, Part 1 No 63 of 3 February 2009.
- 158.
Similar to the conflicts created in the process of ‘restitution’ of agricultural land.
- 159.
Also similarly to legislation concerning the ‘restitution’ of agricultural land.
- 160.
Evidently that in addition to the Supreme Court’s change of practice, the Romanian subsequent inconsequent legislation and the confusion it generated within the courts was a major source of aggravation.
- 161.
Vasilescu v. Romania (App no 29407/95) Judgment of 22 May 1998, ECHR Reports of Judgments and Decisions 1998-III, p. 1075. For a commentary of the Vasilescu case in the more general context of ECtHR practice, see e.g. Sanja Djajic, The Right to Property and The Vasilescu v. Romania Case, 27 Syracuse J. Int'l. L. & Com. 363 (2000). The general refusal of the European Court to adjudicate communist regimes infringements on property is discussed for example by Allen (2006) and by Karadjova (2004). For a discussion on the general ‘no compensation’ for harm caused by a past regime’ approach of the European Court see e.g. Brems (2011, 289); Varju (2009). For a general discussion of the ‘earlier’ post-communist cases Gross (1996). For the different approach in respect to property taken by the United Nations Human Rights Committee, and for the limitations of the approach, Macklem (2005), respectively Pogány (2010). For an arguably similar Slovak case to Vasilescu, in which the Grand Chamber reached a dissimilar conclusion see Kopecký v. Slovakia, Application No. 44912/98, Judgment of 7 January 2003 (Fourth Section); Judgment of 28 September 2004 (Grand Chamber) available at http://www.echr.coe.int/echr, and in particular the dissention opinion of Judge Strážnická.
- 162.
Vasilescu v. Romania, Ibid.
- 163.
Brumărescu versus Romania, the court holdings.
- 164.
During the first post-communist decade.
- 165.
See supra for the meaning of the ‘recourse in annulment’ in Romanian law.
- 166.
Brumărescu, Ibid. para. 61.
- 167.
Ibid.
- 168.
Ibid. This was one count of infringement of the Article 6-1 resulted from the practice of the Supreme Court to quash the inferior courts definitive decisions. A second count of infringement of the same article (access to the courts) resulted from the Supreme Court rulings between 1995 and 1998 that the courts were not competent to adjudicate the former owner claims, which left the adjudication of the former owners’ claims outside the judicial process.
- 169.
For a statistic of the judgments delivered by the ECtHR in cases involving Romanian restitution of nationalised property between 1999 and 2004, see Lavinia Stan, op. cit, at p. 201. Accordingly to Stan, which compiled the data from the Court’s reports, in 1999 it was one such judgment, in 2001 another judgment, while in 2002, and 2003 the number of cases piled to 27 for the former, respectively 22 for the later. In 2004 there were also nine such Romanian cases.
- 170.
Para. 4–18 Străin vs Romania, op. cit.
- 171.
Ibid, paras. 19–27; 47–48; and 54–56.
- 172.
Ibid, para 46.
- 173.
Ibid. para 54.
- 174.
Ibid, para. 56.
- 175.
Ibid. para. 59 observing that “The State sold the property despite the fact that an action brought by the applicants, claiming to be the victims of an unlawful nationalisation, was pending against it and that it had recently refused to sell the other flats in the same building. In the Court's view, such an attitude on the part of the State cannot be explained in terms of any legitimate public interest, be it political, social or financial, or by the interests of the community at large”.
- 176.
Ibid. Para 67–68.
- 177.
Para 23–53, Păduraru v. Romania.
- 178.
Ibid, paragraph 68.
- 179.
Ibid, citing Zwierzyński v. Poland, no. 34049/96, § 73, ECHR 2001–VI.
- 180.
Ibid, paras. 95–96 and 99.
- 181.
Ibid, para. 99.
- 182.
Ibid, paras. 75; 94–99; and 112.
- 183.
Ibid, paras. 99, 112.
- 184.
See e.g. Ruxanda Ionescu v. Romania, No 2608/02, Judgment of 12 October 2006; Suciu Arama v. Romania, No 25603/02, Judgment of 9 November 2006; Gabriel v. Romania, No 35951/02, Judgment of 8 March 2007; Florescu v. Romania, No 41857/02, Judgment of 8 March 2007 (all available in French on the court’s website at http://www.echr.coe).
- 185.
Application No 4596/03. Judgment of 16 February 2006 (available in French on the court's website at http://www.echr.coe).
- 186.
Ibid, paras 8–17.
- 187.
Ibid, paras. 21–25.
- 188.
Ibid 32–33.
- 189.
Ibid para 32.
- 190.
Ibid para 43.
- 191.
Ibid, para 34.
- 192.
Application No 13309/03, Judgment of 20 July 2006 (available in French on the Court website at http://www.echr.coe).
- 193.
Ibid, paras 19–20.
- 194.
Ibid, para 32–34.
- 195.
Application No 29035/05, Judgment of 17 January 2008, (available in French on the court website at http://www.echr.coe).
- 196.
Ibid, paras 19–20.
- 197.
Ibid, paras 32–33.
- 198.
See e.g. ECHR Statistics for Romania on 1 January 2009, online at: http://www.echr.coe.int/NR/rdonlyres/519DA600-0C28-41C1-B644-A4285556F296/0/Romania.pdf (last visited August 2011), providing for approximately 173 Judgments between 1998 and 2008 in which the Court found a violation of the protocol P1-1 of the Convention, related to the Protection of Property, overwhelmingly in cases of “restitution” of nationalised property. Subtracting the approximate 70 judgments delivered by the Court between 1999 and 2005, there are 100 judgments delivered in 3 years in such cases.
- 199.
Viaşu v. Romania, no. 75951/01, Judgment of 9 December 2008 (in French).
- 200.
Unlike in an earlier case, Dorin Lupulet v. Romania (Application No. 25497/94, Decision on the admissibility of the application of 17 May 1996, available online on the Court’s website: http://www.echr.coe.int) in which the Strasbourg court ruled that it was not competent, ratione temporis, to solve the issues related to Romanian restitution of Agricultural land.
- 201.
Ibid, paras. 26–27.
- 202.
Viaşu, paras. 28–49.
- 203.
Ibid, para 71.
- 204.
Ibid.
- 205.
Ibid, para 75.
- 206.
Vias¸u, para 50–51 and paras. 79, 81.
- 207.
Ibid, 82–83.
- 208.
Faimblat v. Romania, No 23066/02, Judgment of 13 January 2009 (available in French on the court website at http://www.echr.coe).
- 209.
Ibid, para 8–9.
- 210.
Ibid, para 10–14.
- 211.
Ibid, paras. 15–17.
- 212.
Ibid, paras. 31–43.
- 213.
Ibid para 48.
- 214.
Ibid, para 49.
- 215.
Ibid, para 53.
- 216.
Ibid, para 50–53.
- 217.
Katz v. Romania, No. 29739/03, Judgment of 20 January 2009 (available in French on the court website at http://www.echr.coe), (last visited August 2011).
- 218.
Katz v. Romania, op. cit., paras 4–10.
- 219.
Ibid, para. 24.
- 220.
Ibid, paras 33–35. See also Deneş and Others versus Romania, No. 25862/03, Judgment of 3 March 2009 (available in French on the court website at http://www.echr.coe), and Tudor Tudor versus Romania, No. 21911/03, Judgment of 24 March 2009, one of the rare cases of tenants acquiring nationalised property under the Law 115/96 evicted by the former owners, in which the Court decided that in such cases, the tenants should receive not the indexed price paid when acquiring the property, but the full market value of the property they lost.
- 221.
Ibid, para 35.
- 222.
Ibid.
- 223.
See The Committee on Legal Affairs and Human Rights: States with major structural/systemic problems before the European Court of Human Rights: statistics, AS/Jur/Inf (2011) 05 rev 2, 18 April 2011, online on the Parliamentary Assembly of the Council of Europe website at http://assembly.coe.int. For example, in 2008 the Court delivered 129 judgments in which it found a violation of P 1–1, in 2009 it delivered 92, and in 2010, 58. On April 2011, Romania had 584 cases pending before the Committee of Ministers. Id. at p. 14. Accordingly to the statistics published by the Court, Romania was ranked second among the respondents states, by number of new applications filed with the Court, with a robust 5000 applications in each year between 2008 and 2010.
- 224.
Applications nos. 30767/05 and 33800/06, Judgment of 12 October 2010.
- 225.
Under the pretext that the administrative procedures should be followed first.
- 226.
Ibid, para 126.
- 227.
Ibid para 241, and para 7 of the Court’s Holding.
- 228.
See e.g. para 6 of the Court’s Holding, para 241.
- 229.
Ibid, paragraphs,15–27.
- 230.
Filed with the Court by Ileana Florica Solon.
- 231.
See Maria Atanasiu, op. cit, paragraphs 28–30.
- 232.
For Atanasiu and Poenaru see paragraphs 28–30, for Solon paragraphs 31–39 of the Judgment.
- 233.
See paraphs 18–27 of the Judgment for Atanasiu and Poenaru, and paragraphs 40–43 for Solon. In the case of Atanasiu and Poenaru, the administrative procedure involved restitution.
- 234.
See paragraphs 27 and 43 of the Maria Atanasiu Judgment.
- 235.
See paragraphs 44–76.
- 236.
See paragraphs 85–107.
- 237.
Ibid, paragraphs 177–179, and 233.
- 238.
Ibid, paragraph 178.
- 239.
Ibid.
- 240.
Ibid, paragraphs 119.
- 241.
Ibid, paragraphs 77–80. The Court observed for example from the statistics presented by the Romanian Government that less than half of the more than 200,000 claims for restitution filed under the Law 10/2001 providing for restitution of nationalised houses were analysed by the Central Board, and an award for compensation was proposed for approximately 56,000 cases; or that in the case of land where more than a million and a half claims were filled, less than 10,000 compensation certificates were issued, or that in the case of law 247/05 a little more than 172,000 of the 800,000 claims were granted.
- 242.
Ibid, paragraph 184.
- 243.
Ibid.
- 244.
Ibid.
- 245.
Ibid, paragraph 206.
- 246.
Ibid, paragraph 231.
- 247.
Ibid, para 232.
- 248.
Ibid, para 235.
- 249.
Alina Neagu, hotnews, 25 July 2016, ‘Rechizitoriul DNA: Persoane cu functii de conducere in Administratia Prezidentiala si in Ministerului Mediului au intervenit la ANRP pentru omul de afaceri Horia Simu’ (National Department of Anticorruption indictment: High ranking officials in the Presidential Administration and Ministry of Environment intervened before the Romanian Authority for the Restitution of Property in favour of the businessman Horia Simu, online at: http://anticoruptie.hotnews.ro/stiri-anticoruptie-21182877-rechizitoriul-dna-persoane-functii-conducere-administratia-prezidentiala-ministerului-mediului-intervenit-anrp-pentru-omul-afaceri-horia-simu.htm, last accessed July 2016); Lăzăreanu Răzvan,'Jaful secolului“. Dosarele ANRP, prejudiciu-record: 700 milioane de euro (The Plunder of the Century; Romanian Authority for Restitution of Property files, Damages of over 700 million Euro), January 3, 2016 in Expunere.com online at: http://www.expunere.com/jaful-secolului-dosarele-anrp-prejudiciu-record-700-milioane-de-euro.html (last visited March 2016). The indictment of a number of preeminent parliamentarians, a former chief prosecutor and a number of important Romanian dignitaries and the continuous coverage of the press of the fraudulent schemes in which these dignitaries were involved for make the ‘restitution’ scheme devised by the Romanian center right coalition in 2004 to look like increasingly like a fraud.
- 250.
Raluca Pantazi, Victor Cozmei: Supravietuitor in trei Guverne: Consilier in Guvernul Nastase, pus de Tariceanu la Autoritatea pentru Restituirea Proprietatilor, pastrat de Boc, arestat de DNA ( Survivor in three governments; counselor in the Nastase's Government, named by Tariceanu in the board of National Authority for Restitution of Properties, kept by Boc, arrested by National Anti-Corruption Prosecutor’s Office), Hotnews, 30 August 2011, online at http://m.hotnews.ro/stire/9973776 (last visited October 2014); Catalin Ciocan: Dosarul restituirilor, gata sa explodeze in fata statului roman. Proiectul care reglementeaza despagubirile dupa epuizarea Fondului Proprietatea nu a fost inca finalizat, iar fostii proprietari ameninta cu procese la Strasbourg si Washington (the restitution file, ready to explode before the Romanian authorities. The project regulation the compensation after distribution of Proprietatea Fund shares has not been finalised, and the former owners menace with lawsuits at Strasbourg and Washington), Economic times, 18 November 2011, online at: http://tinyurl.com/87lh3w8 (last visited November 2014); Craita Siminonescu: “Micii actionari ai Fondului Proprietatea, nemultumiti de administrator” (Small shareholders unhappy with the Administrator of the Fund Proprietatea), in Bursa, 21.11.2011.
- 251.
In the words of Jon Elster. See Elster (2004).
- 252.
When it indicated in the Maria Atansiu dictum that a cap on compensation of the former owners would be acceptable.
- 253.
For a detailed description of the earlier attempts, see Youngblood (1995). For a description and evaluation of the major shortcomings of these attempts, see Pogány (1997, 154–155). For an inventory of the earlier and later attempts see Rzepliński, below, and Zaleczna and Havel, infra. For a table with the main provisions of the later proposals, also Zaleczna and Havel, at 188.
- 254.
Andrzej Rzepliński: Written Comments on Behalf of the Helsinki Foundation for Human Rights submitted to the ECHR in the Case Henry Pikielny and others v. Poland, Application No. 3525/05, (April 2007) online at: http://www.hfhrpol.waw.pl/precedens/images/stories/Pdfy/Pikielny_amicus.pdf (last visited Feb 2014).
- 255.
Tom Cwiok: Property Restitution—No Chance for a General Act online at http://cosmopolitanreview.com/articles/34-other/271-property-restitution-no-chance-for-a-general-act (last visited August 2014).
- 256.
Grazyna Skapska, ‘Restitutive Justice, Rule of Law, and Constitutional Dilemmas,’ in Czarnota et al. (2006, 218–19).
- 257.
Youngblood (1995).
- 258.
Łoś: (1994, 44–46), showing that in general the Senate was favourable to restitution to pre-communist owners, but it was also concerned with the public opinion sentiments on this matter.
- 259.
Łoś, Ibid, at p. 47. Also Youngblood (1995, 669).
- 260.
Rzepliński, Written Comments, n 254, supra; Youngblood (1995).
- 261.
Youngblood (1995, 649–654). Youngblood cites evidence that the Polish policy makers were watching and learning from the experience of neighboring countries. See Leszek Balcerowicz declarations, cited by Youngblood, supra, at 651. The executive’s preponderant considerations of fiscal restrains seemed to apparently converge with those of the Sejm, the lower chamber of the Parliament.
- 262.
Youngblood (1995, 671). The Sejm bill provided for the return of property when possible, in kind compensation as alternative, and compensation in vouchers if the first two were not possible, in addition to citizenship or residency requirements and a ceiling on the limit of returnable property.
- 263.
Ibid., 672.
- 264.
Pogány (1997, 145).
- 265.
Rzepliński, Written Comments. The initiative turned slowly to the Government, after 2000.
- 266.
- 267.
See Marek Jan Chodakiewicz and Dan Currell, ‘RESTYTUCJA: The Problems of Property Restitution in Poland (1939–2001),’ in Chodakiewicz et al. (2003, 157–193, at 176).
- 268.
Zaleczna and Havel (2009, 188). Also see Broniowski v Poland ECHR Grand Chamber Judgment of 22 June 2004, paragraphs 62–65.
- 269.
Zaleczna and Havel (2009, 179).
- 270.
Ibid. The beneficiaries of the law were only persons with Polish citizenship or residence.
- 271.
Ibid.
- 272.
See e.g. Chodakiewicz and Currell, RESTYTUCJA in Chodakiewicz et al. (2003, 177–191), for a discussion of several such cases and the legal hurdles surrounding them); Youngblood (1995, 659), for an example of a successful case of industrial property restitution in early 1992, only as result of Walesa’s (then President of Poland) pressures, and indicating that in 1994 there were already 100,000 claims for restitution recorded with the Ministry of Ownership Transformation, the bulk of which (approx. 69.000) were for land in the Soviet Union and a lesser amount in Warsaw (approx. 18.000); Zwierzynski v Poland (34049/96) (2004) 38 E.H.R.R. 6 (ECHR) and Dembour and Krzyzannowska-Mierzwska (2004, 530–31).
- 273.
But see e.g. Dacian C Dragos, Andrzej Skoczylas and Mariusz Swora. ‘Administrative Justice in Poland and Romania-Striving for More Efficient Proceedings,’ Paper Presented at Madrid EGPA conference, September 2007 (for a comparison of the Polish Administrative system with the centralised system of Romania). In this context is interesting to note that the Polish Constitutional Court was confronted with the problem of Legislative omissions, and had to develop jurisprudence around the repeated failures of legislature and executive to develop legislation. See e.g. Marian Grzybowski: Legislative Omission in Practical Jurisprudence of the Polish Constitutional Court, (XVIth Congress of the Conference of European Constitutional Courts, 2014) online at http://www.confcoconsteu.org/reports/rep-xiv/report_Poland_en.pdf (last visited Feb 2016).
- 274.
The so called class of ‘Bug River’ claimants.
- 275.
At the level of the Polish Constitutional Tribunal, and of the Supreme Court. For the Polish Constitutional Tribunal decisions see the Polish Constitutional Tribunal Judgments of 19th December 2002-K 33/02, and of 15th December 2004-K 2/04, on the “Right to Offset the Value of Property Left in the Former Eastern Territories of Poland” (I and II), online at http://www.trybunal.gov.pl/eng/summaries/documents/K_2_04_GB.pdf. For the Supreme Court Decision of 21 November 2003, see Broniowski v Poland ECHR Judgment, paras. 108–110. For the Supreme Administrative Court Decisions see Broniowski v Poland, below, par. 103–106.
- 276.
Broniowski v. Poland [GC], no. 31443/96, ECHR 2004-V; 44 ILM 13 (2005). For ithe implications of Broniowski, see e.g. Leach (2005, 161–2). The indications of the paragraphs are those provided on the Court Decisions available on its case-law database, HUDOC.
- 277.
K 33/02 Polish Constitutional Tribunal Decision, par. 5. The analogy provided by the Constitutional Tribunal was followed in the subsequent Supreme Court decision. It is interesting to note that the Polish Civil Code of 1964 in its second part, title II, Articles. 232–43, provided for a right of perpetual use, (‘perpetual usufruct’ for a term of 99 years) which was an innovation of this code compared to other Socialist Countries civil codes. See Koziebrodzki (1966, 777). This was a reversal of the earlier policy tendency of transferring municipal and communal lots in state property by simple operation of law without indemnity and free of encumbrances. Koziebrodzki (1966, 777).
- 278.
K 33/02, Ibid., par. 7–11.
- 279.
Broniowski v. Poland, par. 108–110.
- 280.
Ibid.
- 281.
Id., par 110.
- 282.
Broniowski v. Poland, op. cit.
- 283.
Ibid, para. 187.
- 284.
- 285.
Broniowski v. Poland, paras.188–193.
- 286.
They were issued on the same date. See Dembour and Krzyzannowska (n 1156) 533.
- 287.
See Broniowski v. Poland, par. 111–113.
- 288.
Ibid, par. 114.
- 289.
Ibid, par. 114–119.
- 290.
Ibid, par. 120.
- 291.
K 2/04 Judgment of 15 December 2004, op. cit. It is interesting to note that the website of the Polish Ministry of Treasury which contains comprehensive information for the Bug River class of claimants in English seems not to have been updated to take in consideration the Judgment of the Constitutional Tribunal. See the Ministry of Treasury information for Bug River claimants online at: http://www.msp.gov.pl/wai/en/34/118/ (last visited November 2011).
- 292.
For the ECHR opinion that a cap on compensation which would have provided a mere 20 % of the value of property taken did not violate the Article 1 of Protocol No. 1 of the Convention, and for a general discussion of the provision of the Law of 2005 see e.g. Wolkenberg and Others v. Poland (dec.), no. 50003/99, ECHR 2007–XIV.
- 293.
Agnieszka Greziok, ‘The “Right of Offset” of the Value of Property Left Beyond the Present Polish Borders,’ in Organizacja I Zarzadzanie, Kwartalnik Naukowy, No 4:8 (2009), Wydawnictwo Politechniki Ślaskiej, Gliwice 2009, (The Silesian University of Technology Quarterly Bulletin, 4:8/2009), online at http://www.polsl.pl/Wydzialy/ROZ/Documents/Kwartalnik_naukowy/KN8.pdf.
- 294.
Kluegel and Mason (2004).
- 295.
References
Adam, I., 2003. Legea nr. 10/2001. Regimul juridic aplicabil imobilelor preluate abuziv. 3rd ed, All Beck.
Agócs, P. and Agócs, S., 1993. “The Change Was But an Unfulfilled Promise”: Agriculture and the Rural Population in Post-communist Hungary. East European Politics & Societies, 8(1), pp. 32–57.
Allen, T., 2006. Restitution and Transitional Justice in the European Court of Human Rights. Colum. J. Eur. L., 13, p. 1.
Amblard, L. and Colin, J.P., 2009. Reverse tenancy in Romania: Actors’ rationales and equity outcomes. Land Use Policy, 26(3), pp. 828–836.
Andrusz, G., Harloe, M. and Szelényi, I. eds., 1996. Cities after socialism: urban and regional change and conflict in post-socialist societies. Oxford: Blackwell.
Appel, H., 2000. The ideological determinants of liberal economic reform: the case of privatization. World Politics, 52(04), pp. 520–549.
Appel, H., 2005. Anti-Communist justice and founding the post-communist order: lustration and restitution in Central Europe. East European Politics & Societies, 19(3), pp. 379–405.
Baias, F., Dumitrache, B. and Nicolae, M., 2001. Regimul juridic al imobilelor preluate abuziv. Rosetti.
Blacksell, M. and Born, K.M., 2002. Private property restitution: the geographical consequences of official government policies in Central and Eastern Europe. The Geographical Journal, 168(2), pp. 178–190.
Brems, E., 2011. Transitional justice in the case law of the European Court of Human Rights. International Journal of Transitional Justice, 5(2), pp. 282–303.
Briffault, R., Beermann, J.M., Bezdek, B.L., Hawley, W.G., Sturm, S. and Trubek, L.G., 2001. Public Oversight of Public/Private Partnerships. Fordham Urban Law Journal, 28(5), pp. 1357–1396.
Cerami, A. and Vanhuysse, P. eds., 2009. Post-communist welfare pathways. Palgrave Macmillan.
Chodakiewicz, M.J., Radzilowski, J. and Tolczyk, D. eds., 2003. Poland’s Transformation: A Work in Progress: Studies in Honor of Kenneth W. Thompson. Leopolis Press/Transaction Publishers.
Comisso, E., 1995. Legacies of the past or new institutions? The struggle over restitution in Hungary. Comparative Political Studies, 28(2), pp. 200–238.
Cooke, E. ed., 2001. Modern studies in property law (Vol. 1). Hart Publishing.
Crowder, R.W., 1994. Restitution in the Czech Republic: Problems and Prague-Nosis. Ind. Int’l & Comp. L. Rev., 5, p. 237.
Czarnota, A., Krygier, M. and Sadurski, W. eds., 2006. Rethinking the rule of law after communism. Haworth Press.
Dawidson, K.E., 2005. Geographic impacts of the political: Dealing with nationalised housing in Romania. Political Geography, 24(5), pp. 545–567.
Dembour, M.B. and Krzyzanowska-Mierzewska, M., 2004. Ten Years On: The Voluminous and Interesting Polish Case Law. European Human Rights Law Review (5), pp. 517–543.
Elster, J., 2004. Closing the books: Transitional justice in historical perspective. Cambridge University Press.
Fleming, D., 1995. Compensation or Restitution? An Analysis of the Hungarian Land Compensation Acts 1991–92. Journal of Property Valuation and Investment, 13(4), pp. 71-78.
Gallagher, T.G., 2005. Theft of a nation: Romania since communism. Hurst and Co.
Ganev, V.I., 2007. Preying on the state: The transformation of Bulgaria after 1989. Cornell University Press.
Gelpern, A., 1993. Laws and Politics of Reprivatization in East-Central Europe: A Comparison. U. Pa. J. Int’l Bus. L., 14, p. 315.
Grzesiok, A., 2009. The” right of offset” of the value of property left beyond the present Polish borders. Organizacja i Zarządzanie: kwartalnik naukowy, (4:8), pp. 35–54.
Gross, A.M., 1996. Reinforcing the New Democracies: The European Convention on Human Rights and the Former Communist Countries-A Study of the Case Law. Eur. J. Int’l L., 7, p. 89.
Heller, M. and Serkin, C., 1999. Revaluing Restitution: From the Talmud to Postsocialism, 97 Mich. L. Rev, 1385, p. 1385.
Karadjova, M., 2004. Property restitution in Eastern Europe: Domestic and international human rights law responses. Review of Central and East European Law, 29(3), pp. 325–363.
Klingsberg, E., 1992. Judicial review and Hungary’s transition from communism to democracy: the constitutional court, the continuity of law, and the redefinition of property rights. BYU L. Rev., p. 41.
Kluegel, J.R. and Mason, D.S., 2004. Fairness matters: social justice and political legitimacy in post‐communist Europe. Europe-Asia Studies, 56(6), pp. 813–834.
Koziebrodzki, L.B., 1966. Administrative and civil law in the regulation of property rights in present-day Poland. The American Journal of Comparative Law, pp. 772–781.
Kritz, N.J. ed., 1995. Transitional justice: how emerging democracies reckon with former regimes. (Vol. 3: Law, Rulings, and Reports). US Institute of Peace Press.
Kuti, C., 2009. Post-communist Restitution and the Rule of Law. Central European University Press.
Lambert-Abdelgawad, E., 2008. The execution of judgments of the European Court of Human Rights (Vol. 19). Council of Europe.
Leach, P., 2005. Beyond the Bug River—A New Dawn for Redress Before the European Court of Human Rights. European Human Rights Law Review, 2, pp. 148–164.
Leach, P., Hardman, H. and Stephenson, S., 2010. Can the European Court’s pilot judgment procedure help resolve systemic Human Rights violations? Burdov and the failure to implement domestic court decisions in Russia. Human Rights Law Review, 10(2), pp. 346–359.
Levmore, S., 1987. Variety and uniformity in the treatment of the good-faith purchaser. The Journal of Legal Studies, 16(1), pp. 43–65.
Łoś, M., 1994. Property rights, market and historical justice: legislative discourses in Poland. International journal of the sociology of law, 22(1), pp. 39–58
Macklem, P., 2005. Rybná 9, Praha 1: Restitution and Memory in International Human Rights Law. European Journal of International Law, 16(1), pp. 1–23.
Mungiu-Pippidi, A. and Stefan, L., 2012. Perpetual Transitions Contentious Property and Europeanization in South-Eastern Europe. East European Politics & Societies, 26(2), pp. 340–361.
Noutcheva, G. and Bechev, D., 2008. The successful laggards: Bulgaria and Romania’s accession to the EU. East European politics & societies, 22(1), pp. 114–144.
Pasti, V., 1997. The challenges of transition: Romania in transition. Columbia University Press
Pogány, I.S., 1997. Righting Wrongs in Eastern Europe. Manchester University Press.
Pogány, I., 2010. International human rights law, reparatory justice and the re-ordering of memory in Central and Eastern Europe. Human Rights Law Review, 10(3), pp. 397–428.
Pop-Eleches, G., 2008. A party for all seasons: Electoral adaptation of Romanian Communist successor parties. Communist and Post-Communist Studies, 41(4), pp. 465–479.
Reich, C.A., 1964. The New Property, 73 Yale L. LJ, 733, pp. 737–38.
Sabău-Pop, I. and Puie, O., 2008. Regimul juridic al unor bunuri aparţinând regiilor autonome şi societăţilor comerciale cu capital de stat, în contextul legislativ actual. Studia Universitatis Babes Bolyai-Iurisprudentia, (1), pp. 187–198.
Sadurski, W., 2009. Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments. Human Rights Law Review, 9(3), pp. 397–453.
Sajó, A., 1990. New legalism in East Central Europe: Law as an instrument of social transformation. Journal of Law and Society, 17(3), pp. 329–344.
Sher, G., 1993. Forum on Restitution. East. Eur. Const. Rev., 2, p. 37.
Shelton, D., 2006. Remedies in International Human Rights Law 2nd ed. Oxford University Press.
Socaciu, E.M., 2007. Restituţia imobilelor naţionalizate: preliminarii ale unei evaluări morale. Sfera Politicii, (128), pp. 06–22.
Stan, L., 2006. The roof over our heads: Property restitution in Romania. Journal of Communist Studies and Transition Politics, 22(2), pp. 180–205.
Stephan, P.B., 1996. Toward a positive theory of privatization—Lessons from Soviet-type economies. International Review of Law and Economics, 16(2), pp. 173–193.
Swain, N., 1999. Agricultural restitution and co-operative transformation in the Czech Republic, Hungary and Slovakia. Europe-Asia Studies, 51(7), pp. 1199–1219.
Symes, D., 1993. Agrarian reform and the restructuring of rural society in Hungary. Journal of Rural Studies, 9(3), pp. 291–298.
Szelényi, I., 1983. Urban inequalities under state socialism. Oxford University Press.
Van der Walt, A.J., 2009. Property in the Margins. Hart Publishing.
Vanhuysse, P., 2006. Divide and pacify: strategic social policies and political protests in post-communist democracies. Central European University Press.
Varju, M., 2009. Transition as a Concept of European Human Rights Law. European Human Rights Law Review (9), p 170
Verdery, K., 2001. Inequality as temporal process Property and time inTransylvania’s land restitution. Anthropological theory, 1(3), pp. 373–392.
Verdery, K., 2002. Seeing Like a Mayor Or, How Local Officials Obstructed Romanian Land Restitution. Ethnography, 3(1), pp. 5–33.
Verdery, K., 2003. The vanishing hectare: property and value in postsocialist Transylvania. Cornell University Press.
Verdery, K., Caroline Humphrey, eds. 2004 Property in Question: Value Transformation in the Global Economy. Berg: London.
Youngblood, W.R., 1995. Poland’s Struggle for a Restitution Policy in the 1990s. Emory Int’l L. Rev., 9, p. 645.
Yin, R.K., 2003. Case Study Research: Design and Methods 3 rd Edition Sage. Thousand Oaks.
Zaleczna, M. and Havel, M., 2009. The institutional changes, social capital and old expropriation consequences in Poland. Nordic journal of surveying and real estate research, 3, pp. 176-188
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2016 Springer International Publishing AG
About this chapter
Cite this chapter
Damşa, L. (2016). ‘Restitution in Action’ in Post-communist Central Eastern Europe. The Cases of Romania and Poland. In: The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe . Studies in the History of Law and Justice, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-48530-0_7
Download citation
DOI: https://doi.org/10.1007/978-3-319-48530-0_7
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-48528-7
Online ISBN: 978-3-319-48530-0
eBook Packages: Law and CriminologyLaw and Criminology (R0)