The Roof over Our Heads: Property Restitution in Romania
    
    LAVINIA STAN
    
    During the past decade and a half, calls for the ‘natural’ restitution of residential property (houses and apartments) abusively confiscated by the communist regime during the period 1945– 89 were left unanswered by the post-communist Romanian authorities. The lack of political will to address the problem adequately and fairly, the arbitrary reversal of definitive court orders, and legislation consistently favouring the tenants have persuaded an increasing number of Romanian home-owners to lodge complaints with the European Court of Human Rights. Since 1999, the Court has awarded most owners their houses, but the Romanian authorities have disregarded the verdicts. The result, in some cases, is that justice delayed is justice denied.
    
    Since the collapse of the communist regime, Eastern Europe has struggled with issues related to the politics of memory. While some politicians, researchers and citizens in that part of the world have looked primarily at the future and stressed the urgency of implementing clear blueprints for political, economic and social recovery, others have looked primarily at the past and emphasized the need for moral rebirth and a reassessment of communist policies, methods and outcomes. Throughout Eastern Europe the merits – more accurately, demerits – of the communist regime were vigorously debated, with different countries adopting different transitional justice methods, including lustration, the effort to keep communist officials and political police officers out of post´ communist politics, prosecution of ancien regime leaders and spies for their human rights trespasses, financial and symbolic rewards for individuals persecuted for their political stance, judicial rehabilitation of political prisoners and annulment of court verdicts against them, and the rewriting of history books and redesigning of history museums to reflect the dictatorial nature of ‘people’s democracies’.1 An element of de-communization was represented by restitution of property – including land, industrial and commercial
    
    Lavinia Stan is Assistant Professor in the Political Science Department and Director of the Centre for Post-Communist Studies at St Francis Xavier University, Nova Scotia, Canada. She is the author of Leaders and Laggards: Governance, Civicness and Ethnicity in Post-Communist Romania (2003). Journal of Communist Studies and Transition Politics, Vol.22, No.2, June 2006, pp.180–205 ISSN 1352-3279 print=1743-9116 online DOI: 10.1080=13523270600661011 # 2006 Taylor & Francis
    
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    buildings, residential houses and apartments, tools and technical equipment – that the communist state took away abusively. While most transitional justice processes in post-communist Eastern Europe have been documented, property restitution has remained under-studied. This article presents a case study of restitution of residential property (houses and apartments) in one of the most neglected post-communist countries, Romania. To date, studies of property restitution in Romania were undertaken by anthropologists. Verdery and Kideckel examined the changing nature of property rights, with a focus on land restitution; Smidova, Zerilli, Otoiu, Dawidson ¸ and Chelcea turned their attention to redistribution of housing units, the role of confiscated homes in the lives of tenants and owners, and the grounds on which both groups claim ownership and usage rights over contested houses; both Otoiu and Zerilli examined the way interest groups representing the ¸ tenants or owners coordinated lobbying efforts, influenced public policy, and gained public support for their side. These studies help us to understand the significance of housing restitution, the construction or reconstruction of family memory, the effectiveness of interest group organization, and the array of arguments tenants and owners used to further their cause.2 However, the literature adopted a micro-level perspective that makes generalization difficult. We know a lot about housing restitution in Bucharest, but the process did not unfold similarly in other parts of the country. We know a lot about the divide between tenants and owners, but not about their relationship with the lawmakers representing different political parties. The state has been seen as a monolithic structure, when in fact various state agencies and actors have adopted different, even opposite, stands towards housing restitution. This is the first article to use a transitional justice framework to investigate housing restitution, discuss the extent to which legislation reflects group interests, highlight the political bargaining that led successive governments to block ‘natural’ restitution (the physical return of the original dwellings), examine the tensions between the legislature and the courts in providing a legal solution to the restitution process, and present the European Court of Human Rights decisions on cases involving residential property restitution in Romania. By 2001, the year when Romania regulated the restitution of nationalized property, Hungary, Bulgaria, Estonia, Lithuania, the former Czechoslovakia and East Germany had already adopted relevant legislation. The 1990 Czechoslovak ‘Law on Relieving the Consequences of Property Injustice’ returned 70,000 small businesses and houses nationalized from 1955 to 1961, and the 1991 ‘Law on Extrajudicial Rehabilitation’ returned property expropriated prior to 1955. Initially, redressing the forced land collectivization and private property nationalization was thought to be costly, inefficient and economically unsound because of confusion over property rights and claims, but the demands of former political prisoners seeking rehabilitation, whose
    
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    punishment often included state-led confiscation of property, legitimated property restitution. Confiscated property could be returned in its original form (‘natural’ restitution) or, instead of the original property, claimants could accept financial compensation or shares in enterprises intended for privatization.3 Germany addressed property restitution claims both after the Second World War and in 1989. In 1949 the United Restitution Organization was set up to recover communal properties for which no private claimants appeared. In its first two decades, it received 450,000 claims from 300,000 victims of persecution, awarding some victims their initial property and offering other victims compensation totalling $547 million.4 Post-communist Germany set 31 December 1992 as the deadline for claimants to file requests for land restitution. The German unification treaty specified that property claims by East German home owners were solved under the principle ‘return instead of compensation’. The principle was criticized for letting residents of single-family houses shoulder the compensation cost and exposing them to the threat of eviction as former owners and their descendants had their rights reinstated. The social downside of the ‘return instead of compensation’ principle was tragically brought to light in 1992, when two tenants whose homes had been reclaimed hanged themselves in desperation and protest. Critics alleged that property return was not uniformly justified, since communists seized property from Nazi collaborators who were not morally entitled to restitution, and often claimants were descendants of original owners and had never actually lived in those properties but sought to renovate and resell them.5 Together with other transitional justice processes, the restitution of property abusively taken over by the state is the ordinary means by which a political community atones for and takes responsibility for its past misdeeds.6 An intrinsic component of the rule of law that East European countries wish to adhere to, property restitution is one of a number of ritual performances that could bring about public vindication and maintain the legitimacy of the new democracies by establishing moral principles through the identification of wrongdoing and the righting of wrong.7 While Czechoslovakia and Germany took responsibility for communist mistakes, the revolutionary forces that brought down the Romanian dictatorship were willing to blame Ceausescu but not the entire communist system, in which many new leaders ¸ had loyally served as second-echelon apparatchiks. Probably Valer Dorneanu articulated most clearly the position of the conservative Social Democrats, who for the past 15 years have dominated post-communist politics in that country, first under the banner of the National Salvation Front and later as the Party of Social Democracy. While defending the government’s legislative proposal on nationalized homes, Dorneanu rejected restitution ‘in nature’ for
    
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    ignoring communist legislation in force when tenants entered the residences, invalidating communist policies and recognizing that regime as ‘a totalitarian regime whose undemocratic nature brought damage to the judiciary. Could we invoke the rule of law not to recognize our state’s temporal continuity by way of invalidating legislation adopted by a regime then uncontested?’ Opting for ‘natural’ restitution amounted to condemning the communist regime, a position with ‘unforeseeable, unquantifiable and unsolvable consequences’, Dorneanu said.8 As we shall see, in the name of the continuity of the Romanian state and the tenants’ use of residential units, property restitution was delayed, blocked and eventually limited to the rare cases when owners lived in their initial homes. Communist Nationalization Policies After the 1945 communist takeover, Romania moved quickly to confiscate, expropriate, requisition and nationalize property belonging to individuals, organizations and religious and ethnic communities in order to ensure the preeminence of state-controlled property in the new centrally planned command economy. Expropriation of large land properties was launched by Law 187/ 1945, and expanded by Decree 83/1949. Decree 92/1950, only parts of which were published in the official gazette, Monitorul Oficial, nationalized without compensation residential units ‘to deprive exploiters of an important exploitation instrument’, ‘develop the socialist economic sector’ and ‘administer the housing sector degraded by the sabotage of the bourgeois exploiters’. The decree ran counter even to the 1948 communist Constitution, which recognized and guaranteed private property (Article 8), limited expropriations to instances of public utility for which owners were duly compensated (Article 10), and excluded residences from the categories of assets to be nationalized (Article 11). Decision of the Council of Ministers 606/1959 expanded the list of expropriated residential units, Decree 111/1951 allowed the state to take possession of abandoned residences, Decree 224/1951 deprived of their property owners unable to repay debts to the state, while Law 18/1968 exposed owners to the threat of having their assets confiscated unless the source was fully disclosed. Law 4/1973 allowed families to own only one dwelling, and the state to requisition without compensation additional dwellings not sold off within a year. Decree 223/1974 confiscated the property of Romanians who refused to return to the country after travelling abroad, obtained permission to emigrate from the communist authorities or crossed the border illegally. Only citizens who emigrated legally, and cleaned, restored and repainted their homes, were entitled to compensation, although this could not exceed a quarter of the property’s value. From 1945 to 1964, residential properties were confiscated from individuals charged for their political views, and additional homes were
    
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    unlawfully requisitioned throughout the communist period by the members of the civil police and the political police. These nationalized residences became state property de facto, de jure or in both legal senses, while those using them, including initial owners, became tenants renting from the state. The most attractive residences – in terms of location, amenities and condition – were handed out to nomenklatura members, party apparatchiks and political police agents, the rest being allotted to workers and peasants arriving in large urban centres with the industrialization drive. There has been controversy regarding the total number of residential units confiscated from 1945 to 1989. In 1994 parliament announced that the communists confiscated 241,068 residential units (see Table 1). Deputy Gheorghe Tara mentioned a total of 400,433 expropriated units, of which ¸ ˘ 154,000 had been demolished before 1994.9 A lawyer, Aurelia Dinescu, mentioned a total of 450,000 units, but senator Dan Patriciu referred to as many as 640,000 confiscated residential units, affecting 800,000 – 900,000 individuals. He further claimed that in September 1993 one-fifth of confiscated dwellings were rented out to public institutions and private firms, with individuals occupying the remainder. In the country some 13 per cent of confiscated residences, and in Bucharest about 19 per cent, had been demolished, according to Patriciu.10 Deputy Ionel Ardeleanu announced that 60,000 residences, mostly in the Transylvanian counties of Sibiu, Satu Mare and Brasov, had ¸ been confiscated by Decree 223/1974.11 Location and architectural details made these residential units highly desirable. While some nationalized residences were in the countryside, having been requisitioned from pre-communist landowners or members of ethnic minorities who had chosen to emigrate, most houses and apartments were in urban areas, often close to the centre of large cities such as Bucharest, Cluj, Iasi, Constanta and Timisoara. As in other East European countries, ¸ ¸ ¸ communist authorities tried to address the chronic housing shortage by
    TABLE 1 RESIDENTIAL PROPERTY CONFISCATED, NATIONALIZED AND EXPROPRIATED BY ROMANIAN COMMUNIST AUTHORITIES, 1945 – 89
    
    Decade 1940s 1950s 1960s 1970s
    
    Legislative framework Law 187/1945, Decree 83/1949 Decree 92/1950, Decree 111/1951, Decree 224/1951, Decree 513/1953, Decree 409/1955 Decree 218/1960, Decree 712/1966, Law 18/1968 Law 4/1973, decree 223/1974 Unspecified Total
    
    Number 1,263 139,145 4,662 62,116 33,882 241,068
    
    ˆ Source: Monitorul Oficial al Romaniei, partea a II-a, 11 June 1994, p.9.
    
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    constructing massive multi-level apartment blocks that surrounded the old urban centres. Nationalized residential units were located primarily in the historic city centres, where apartment blocks could not be erected owing to lack of space or opposition towards destroying the architectural balance of the tranquil traditional residential areas. This location often guaranteed proximity to governmental offices and well-stocked shops, better-lit and better-guarded streets, better schools, city parks, playgrounds and more considerate neighbours, and thus translated into a higher social status, which remained desirable even under a regime promoting social homogeneity. While communist-era apartments were small, unfinished, damp and poorly isolated, nationalized residences included houses with small courtyards or apartments in old buildings that were larger in terms of number of rooms and total floor area, and featured attractive architectural details (high ceilings, fireplaces, wooden floors and matching window and door panels, and larger terracotta stoves, cupboards and windows). In the aftermath of the December 1989 revolution, there were calls for redistributive justice and reparation for communist injustices, including ‘natural’ restitution of abusively confiscated residential property and just compensation. As we shall see, politicians of all ideological persuasions united in their opposition to the physical return of the original dwellings. As a result, it was only in 2001, and principally at the request of the European Union, that the Romanian parliament adopted legislation on such restitution. The lack of political will has prompted an ever growing number of Romanian owners to seek justice by petitioning the European Court of Human Rights. The Politics of Restitution (1990 –96) Days after Ceausescu was removed from power, the ‘historical’ Christian ¸ Democrat Peasant Party and the Liberal Party asked for the return of confiscated homes as part of the decommunization effort.12 They argued that Romania should take the interwar period as a model for the new political community it wished to construct. Reinventing politics called, among other things, for upholding the democratic principle of the inviolability of property, which was also observed by the Western democracies that the country hoped to emulate. The new Romanian leaders were called to prove their commitment to moving the country away from communism not only by setting up new Western-style political institutions, but also by redressing the injustices of ´ the ancien regime. The political change that replaced the communist authorities with new leaders had to translate into a corresponding social change by withdrawing the privileges of the nomenklatura and recognizing for its victims the rights they were denied for so long, ‘historical’ parties argued. Justice meant tenants’ eviction and home restitution to titled owners.
    
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    Public sentiment changed after parliament adopted Law 61/1990 allowing three million tenants to buy state-owned apartments at advantageous prices which hyperinflation quickly rendered equivalent to a television set. The law was seen as a gesture of good will on the part of the revolutionary government, hard pressed to show commitment to a clear break with the communist past. Giving Romanians ownership rights over the apartments they had rented for so many years was a calculated move designed to attract popular support before the first free elections of May 1990, and to secure the loyalty of the industrial working class and civil servants, who primarily occupied those dwellings. Romanians were thus allowed to gain ownership rights on dwellings they could not afford if offered on the open market. In addition, the transfer of ownership rights into private hands allowed the cash-strapped state to renege on its responsibility to upgrade the decades-old apartments, which were in urgent need of reconditioning. The blocks’ exteriors had been blackened by pollution, chipped by earthquakes, changed by makeshift structures and disfigured by the improvised heating devices Romanians used in the 1980s, when the centralized, state-controlled system failed to cover their needs. The blocks’ interiors were draughty, and featured rusty elevators, insecure entrances and poorly lit corridors in which visitors were assaulted by rats, flies, spiders, cockroaches and culinary smells. Despite the often appalling condition of these apartment blocks, few Romanians had the financial means to move out and build their own houses. Tenants of nationalized residential units capitalized on the Romanians’ newly found pride of being home-owners and lobbied the government for the chance to acquire ownership rights for the units they occupied. They argued that the new legislation discriminated against them, since they too had rented from the state and had no say in the kind of dwelling they were offered. It was not their fault, they insisted, that the communist state offered them nationalized dwellings, a mistake for which they should not be punished. As a result of these demands, the focus changed from redressing the injustices the owners suffered to avoiding placing the tenants in a disadvantageous position. The 1991 Romanian Constitution echoed this change of heart by protecting – not guaranteeing – private property (Article 41.2). The first post-communist prime minister, Petre Roman, rejected calls for property restitution on the grounds that the country had to solve the more urgent problems of economic liberalization and currency stabilization. Only in 1991, when Theodor Stolojan became prime minister, did the government draft legislation on property restitution, a move the Salvation Front senator ˘ ¸ Stefan Glavan criticized on grounds that after 1945 through expropriation, nationalization and forced donation, many citizens were brutally and illegally thrown out of their homes,
    
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    which the state then rented out or used as public institutions. The rightful owners want back these properties, abusively and unjustly taken away, and around one million tenants, who for four decades used, maintained and improved these houses, cannot vacate them for lack of alternative dwelling space. The situation needs a clear and fair solution, and calls for identifying residences that can be returned to the owners, those for which owners could receive compensation, and those that tenants could buy out.13
    
    It soon became apparent that calls for the in-depth analysis of the subject were designed to postpone indefinitely the adoption of relevant legislation. In May 1992 the senate learned the fate of some Bucharest ‘protocol residences’ the Communist Party rented out to the nomenklatura by virtue of Decree 263/1979, which allowed state dignitaries and party leaders to use the residences during their term of office; many such residences were nationalized houses. In early 1990 the Romanian government started to evict communist officials and rent out these residences for low fees to the new post-communist elite, their relatives, friends and supporters. Communist officials were told to renounce protocol residences because they had overstayed their political mandates, but not all those who moved in were entitled to such residences, according to Decree 263/1979, which was used to evict the ˘ nomenklatura. Minister of Transportation Traian Basescu, director of the ˘ Romanian Information Service Virgil Magureanu, National Salvation Front senator Antonie Iorgovan and Christian Democrat deputy Ion Ratiu moved ¸ ´ in such houses, as did Silviu Brucan, eminence grise of the revolutionary government and communist ambassador to the United Nations, the tennis player Ion Tiriac, the anti-communist dissident Mircea Dinescu, actors ¸ ˘ ˘ Ioana Pavelescu and Horatiu Malaiele, Securitate undercover agent Dan ¸ ˘ ˘ Voiculescu, and academics Lazar Vlasceanu, Catalin Zamfir and Vasile ˘ ¸ Secares. The report revealed that Tiriac rented a 17-room house of 1,156 ¸ square metres for just 3,093 lei a month (1.5 times the average wage under communism), and Dinescu rented an eight-room house in one of the capital’s prestigious areas. Almost the entire Romanian cabinet moved into the ˘ Primaverii area, a quiet Bucharest area where Ceausescu once resided. ¸ Roman was criticized for disregarding his cabinet’s unpublished Decision 115/1990 – which transferred all Communist Party assets to the state and allowed embassies to rent out protocol residences – for personally allocating protocol residences to his friends and supporters, and for transferring 276 such residences to the Bucharest mayor’s office, thereby ending their protocol status. The new tenants, private firms or individuals, were offered five-year rental contracts, with the possibility of renewal.14
    
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    Debates on Law 85/1992, which expanded the number of state-owned dwellings offered for sale, allowed some deputies to champion the interests of tenants living in nationalized homes. Deputy Coriolan Bucur touched on the legal situation of apartments confiscated from individuals who left communist Romania. Using the Transylvanian Mures county as an example, ¸ Bucur deplored the 2,800 tenant families unable to purchase their dwellings even though the owners’ claims were weakened by the fact that the state had built those apartments. As he said, ‘owners paid a meagre downpayment, but the state assumed all outstanding financial obligations [after their defection] . . . The apartments reverted to the state after owners received compensation’. Bucur asked for tenants to be allowed to buy apartments for which owners were compensated, but the opposition rejected the proposal as socially unjust, recalling that Decree 223/1974 did not compensate illegal emigrants and set compensations well below the value of the property. ¨ Deputy Gyorgy Frunda, of the Democratic Union of Magyars in Romania, stressed that, since confiscated apartments were used by party activists, militia officers and Securitate agents, it was ‘unfair for property abusively confiscated by the totalitarian regime to be handed over to the rulers of the 1970s and 1980s’. The Liberal deputy Ioan Ban insisted that the 1974 decree ran counter to the Human Rights Declaration, which allowed individuals to emi˘˘ grate without losing their homes, and Mihai Balanescu observed that often the emigrants’ consent to having their homes confiscated was obtained under ˘ duress. Salvation Front deputy Adrian Vilau noted that the decree was unconstitutional even by communist standards as the 1965 Constitution did not permit property confiscation, and that, if only one spouse emigrated, the other had to share the home with strangers brought in by the state.15 Debates heated up when the government asked parliament to ‘freeze’ the legal situation of nationalized homes until the adoption of a law. As the house seemed unwilling to decide the legal position of such dwellings, some owners asked the courts to recognize their property rights. Many judges sided with the owners and ordered the eviction of the tenants. The government’s position was that property should not change hands in the absence of a law, because parliament alone, not the courts, should settle the issue of nationalized property, since ‘those homes have been transferred into the hands of the state by legislative acts, and therefore their restitution should be operated by legislation’. For Nicolae Simescu, the government’s proposal ‘solved the problems neither of the tenants, nor of the landlords’. Responding to contentions that tenants were ‘poor people’, the Liberal deputy Constantin Andreescu replied: No, no, no, no! Tenants were communist criminals who said ‘by tomorrow morning leave the house!’, party activists who became ministers, Central Committee members, [county] First Secretaries and members
    
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    of the damned nomenklatura which we claim we want to replace! All these dwellings were used by [communist ministers] Maurer, Bobu and all the thugs who tortured the people for 40 years. OK! We’ll judge them later. Let’s not be Pharisees asking whether it is moral and just throw the tenants out! Was it moral when they grabbed me and kicked me in the head? With whom should I, the victim, discuss? With my aggressor? He asked cabinet to withdraw a draft supporting ‘our aggressors, and our parents’ aggressors’. When Andreescu labelled tenants ‘the immoral lumpen, the communist activists who deserve no pity’, the Salvation Front deputy Alexandru Albu replied that most of the 1.2 million tenants were ordinary Romanians who should not be denied the right to buy out the homes they rented out from the state. Albu ignored the earlier parliamentary report disclosing the names of communist and post-communist officials using nationalized residences and failed to explain how he arrived at the total number of tenants. By painting tenants as ordinary Romanians, Albu legitimized their demands for ownership rights and made them more acceptable to the wider public. In the absence of a quorum, the house could not vote on the proposal.16 After losing the premiership, Roman set up the Democratic Party as the reformist wing of the Salvation Front, while conservatives closed ranks around President Ion Iliescu, a former communist official and one-time collaborator with Ceausescu. In the 1992 elections Iliescu retained the presidency, ¸ while his conservative supporters, organized as the Party of Social Democ˘ ˘ racy, won a plurality of seats in parliament and designated Nicolae Vacaroiu as prime minister. The Christian Democrats became the official opposition, and they used the position to advance the owners’ interests. But the house was too divided, and therefore postponed debates on the issue. In May 1994, during a visit to the Transylvanian town of Satu Mare, President Iliescu publicly opposed ‘natural’ restitution and argued that the courts placed themselves outside the law by reconstituting the owners’ property rights and ordering the tenants’ eviction. Iliescu voiced surprise that some judges admitted cases lodged by owners before parliament could adopt a law, and urged for the non-implementation of court decisions favouring the owners. Iliescu’s call was not left unanswered. Prosecutor-general Vasile ˘ Manea Dragulin (and later his successor, Nicolae Cochinescu) overturned many definitive and irrevocable court verdicts by taking advantage of recurs ˆn anulare (appeal to the court of last resort), a procedure that allows ı the prosecutor-general, a political figure appointed by the executive, to overturn definitive court orders, and the highly contested Supreme Court Decision 1/1995, banning lower courts from hearing cases in the absence of a property restitution law. In these circumstances, thousands of nationalized homes that
    
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    the owners won in court were renationalized. Iliescu reacted to an increase in the number of court decisions ordering ‘natural’ restitution of nationalized property, and complaints from tenants that ‘the new landlords, distant relatives of the initial owners, behave like tyrants’ to make them move out.17 While criticizing owners for taking advantage of the lack of legislation, Iliescu remained silent on the cases in which state agencies overseeing nationalized property unlawfully allowed tenants to buy them. In June 1994 parliament discussed alternative laws on the return of nationalized homes introduced by the government and the opposition. Presenting the government’s proposal, the minister for relations with parliament, Valer Dorneanu, deplored parliament’s procrastination, which ‘complicated and dramatized’ the conflict between the owners, ‘seniors fearful they won’t live the day to receive their property, inherited or obtained through hard work’, and the tenants, ‘who face legislative solutions to the problem with ˘ ˘ fear and uncertainty’. He claimed that, in drafting the proposal, the Vacaroiu cabinet recognized the owners’ property right and the tenants’ right to protection and equitable dwelling, contrasted several alternative solutions, including ‘natural’ restitution and compensation, and estimated the associated costs and the number of dwellings it could offer to evicted tenants. The authorities had received 180,000 claims from tenants and owners, of which 150,000 were for renting state-owned apartments. Since the state needed 1.3 times the 1994 national budget and eight to ten years to build so many apartments, it was unfeasible to move tenants out of nationalized homes. The government believed that owners had rights to their property, but restitution needed to reflect the ‘juridical, social, temporal and material changes these properties suffered’ under communism. The owners’ demands could be met with ‘just compensation’ but not ‘natural’ restitution, which was practically and theoretically impossible because it failed to compensate tenants for improving and maintaining the property, disregarded the tenants’ ownership claim to the property and did not take into account their good faith when buying out the title to the units. ‘Natural’ restitution was also rejected because tenants invested in the properties both financially and emotionally, while the effects of abusive confiscation ‘attenuated in time’, as most owners found other dwellings. Hence, the government proposed the return of the dwellings occupied by initial owners and their families, and compensation for other properties up to the equivalent of the average salary for 20 years. The ministry of finance was to offer owners compensation, recovering the funds by selling off the property to tenants. The law applied to confiscated homes that were in the possession of the state in December 1989 and for which owners had received no compensation from the communist authorities. Following Dorneanu, this political solution ‘resulted in the least social strife and change, and the fewest lawsuits’.
    
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    The opposition’s alternative proposal was introduced by the Christian ˘ Democrat deputy, Rasvan Dobrescu. Presenting it to the senate, Dan Patriciu claimed that ‘natural’ restitution could not be discarded as an option as it was upheld by the 1991 Romanian Constitution and international law, and compensation could be offered only for demolished residences. Criticizing the government for protecting the tenants but not the owners, Patriciu said that the opposition proposed that tenants should be allowed to continue to rent the confiscated homes for a further five years, and government should assist them in acquiring or building new houses. By adopting the government’s proposal, parliament would invalidate over 2,000 court decisions favouring the owners, and introduce a double standard allowing ‘the state, through two of its most important institutions [the legislature and the judiciary], to be a friend to some citizens and an enemy to others’. Dobrescu urged legislators to separate the right to own a property, which had to be reconstituted in favour of the owners, from the right to use the property, and to reject the government’s proposal, which unfairly denied owners the right to own their property, while granting tenants the right both to own and to use the property. According to the proposal, tenants should remain tenants, renting out from the owners, not from the state, and public funds should be used not to compensate owners, but to build new homes for tenants. Asked to state its position on the proposals, the parliamentary committee on public administration sided with the government.18 The two proposals revealed different interpretations of the right to property in general, and the rights of owners expropriated by the communist state in particular. For the Social Democrat government, residential property restitution boiled down to a housing problem where its responsibility was to ensure that both tenants and owners had roofs over their heads. From this point of view, the most inexpensive and least disruptive solution was to limit to a minimum the number of cases entitled to reparation, by excluding owners with dwellings and declaring them unreasonable claimants, and granting tenants the right to use and own those properties. According to this position, the right to property was not inviolable and not available to all citizens, but depended on the claimants’ condition, since owners whose housing problem was unsolved had more claims to their nationalized property than owners who already had somewhere to live. While usually the right to use a property is derived from the right to own it, for the Social Democrats the opposite was true, as tenants were recognized the right to own because they used the homes. The government favoured the tenants, sparing them the chagrin of moving out and finding alternative lodgings, and offering them ownership rights at affordable prices. The government subsidized tenants wishing to buy out the dwellings they used, instead of making the funds available to owners as compensation. By contrast, the opposition saw the return of property taken
    
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    over by communist authorities as a problem distinct from the housing problem, and recognized the right to use as being derived from the right to own.19 In its extraordinary meeting of 4 July 1994, parliament debated President Iliescu’s impeachment, a proposal supported by 167 legislators of the opposition Christian Democrats, the Democratic Union of Magyars, the Civic Alliance Party and the Democratic Party. The opposition claimed that Iliescu’s Satu Mare statements contradicted the 1991 Constitution. More precisely, they infringed Articles 41 and 42 protecting the right to property and inheritance, Article 21 guaranteeing access to the courts, Articles 16 and 21 stipulating that legislation could not limit the citizen’s right to petition the courts, and Article 123 upholding an independent judiciary. Iliescu rejected the accusations and blamed owners for approaching the courts, charging tenants exorbitant rents and evicting them before the five-year rental contracts expired.20 The constitutional court sided with Iliescu, arguing that the owners’ property right had ceased with nationalization, but admitting that ‘the situation is different if owners were denied their property as a result of abusive legislation, as in that case the property right did not legally cease’. Social Democrat ˘ ˘ Viorel Salajean saw the impeachment proposal as an unjustified intellectual exercise, and urged legislators to meet the tenant families ‘on the brink of desperation as a result of continuous court hearings and wrongful, hasty verdicts. You’d see unprotected professors, workers, engineers, pensioners in despair, you’d hear the cry of mothers and children thrown out of homes they legally received, you’d see elderly tormented by an uncertain tomorrow’. For Dan Martian the proposal aimed ‘to devalue the presidency and the republic to prepare the ground for reinstating the monarchy’. For Dan-Mircea Popescu, ‘to attack the head of state merely because he publicly dared to take the side of some poor tenants thrown in the street by corrupt judges is a monumental mistake’. Social Democrats also claimed that the proposal, which ‘mimicked democracy’, was advanced by an opposition that rejected majority rule, maintained a permanent state of conflict, was unable to advance concrete reforms, ‘demolished but proposed nothing constructive’, wanted ‘chaos instead of normalcy’, and ‘created a negative international image [for Romania] as a country that cannot be governed, a country of handicapped and thieves, where everybody is corrupt and everyone pursues only personal interests’. ´ ´ On behalf of the opposition, deputy Gabor Kozsokar of the Democratic Union of Magyars voiced regret for the judiciary’s continued dependence on the executive, and the judges’ unwillingness to shake off the communist behaviour of ‘seeking the [government’s] approval before handing down verdicts’, and condemned the president for saying that ‘all decisions handed down by the judges were illegal’ and calling for their non-implementation, when it
    
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    was known that ‘definitive and irrevocable [court decisions] are like laws’. He insisted that communist injustices could be redressed by courts, not only by parliament. For the Liberal Alexandru Popovici, Romania was a banana republic where ‘Mr Ion Iliescu supported wild capitalism with a populist mask’. Christian Democrat Gavril Dejeu argued that Decree 92/1950 allowed for the nationalization of buildings belonging only to former industrialists, landowners, bankers and ‘upper bourgeoisie elements’. The homes of other social categories had been illegally nationalized and then offered to ‘communist and post-communist elites that, after taking advantage of a regime of cruel exploitation and humiliation of the Romanian people, benefit today, thanks to our post-revolutionary rulers, of pensions two, three and several times larger than the workers’, pay meagre rents and want to become owners of the houses they and their family abusively took away from workers, civil servants, small artisans, intellectuals and pensioners’. Christian Democrat Vasile Lupu argued that the constitutional court’s unanimous decision to exonerate Iliescu proved its obedience, and charged the president with defending not the people, but ‘the communist nomenklatura occupying the houses of former political prisoners, war veterans, the national heroes. The nomenklatura is not the ordinary people! It is the clique of lies, terror and theft!’ At the end of the debates, which lasted for six hours, parliament turned down the impeachment proposal, with 166 votes for and 242 against.21 Afterwards the Social Democrat parliamentary majority supported the adoption of Law 112 of 28 June 1995, which incorporated the government’s earlier proposal limiting ‘natural’ restitution to the few cases where residential units were occupied by initial owners or were vacant, and allowing tenants to buy the dwellings they occupied. While criticized by civil society and the international community, the law was not amended to reflect the owners’ interests, not even after 1996 when the Democratic Convention, including the ‘historical’ parties, formed the government and Emil Constantinescu became president. The reasons for the politicians’ unwillingness to see the merits of the home-owners’ claims became apparent in 1997, when the head of the prime minister’s Control Office, Valerian Stan, revealed that among the tenants who bought nationalized homes were well-connected politicians such as Social Democrat legislators Ionel Olteanu, Eugen Plesa, Doru Ioan ¸ ˘ ˘ ˘ Taracila, Sergiu Nicolaescu, Antonie Iorgovan and Viorel Hrebenciuc, and Christian Democrat ministers Mircea Ciumara, Ion Caramitru, Radu Vasile and Constantin Dudu Ionescu. The list included National Bank governor ˘ Mugur Isarescu, former prime minister Stolojan, the ambassador to Paris Oliviu Gherman, the director of the external information service Ioan ˘ Talpes¸, and deputy minister of external affairs Eugen Dijmarescu. Even com¸t ˘ munist officials such as Ilie Verdet, Paul Niculescu-Mizil, Manea Manescu, ¸
    
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    ˘ Cornel Burtica, Nicolae Plesita, Tudor Postelnicu, Ion Mincu and Iulian Vlad ¸ ¸˘ had benefited from Law 112/1995.22 Stan further revealed that Iliescu had rented a nationalized four-room apartment in Bucharest for only 1,280 lei a month. Before the end of his 1992– 96 presidential term Iliescu bought the apartment for a fraction of its market value. The revelations placed the government in such an unflattering position that Stan lost his position for failure to obtain prime minister Viorel Ciorbea’s clearance before disclosing the investigation results. Having won the 1996 elections with promises of de-communization, the Democratic Convention explained parliament’s unwillingness to make Law 112/1995 more equitable and adopt new legislation on property restitution by blaming the opposition Social Democrats for lack of political will. Stan’s revelations suggested that many Democratic Convention leaders had a vested interest in siding with tenants against owners. A draft law introduced in parliament by the Ciorbea cabinet in 1997 gave owners no satisfaction, making a condition of ‘natural’ restitution written notification submitted by owners before tenants bought the dwellings, and upholding the tenants’ newly acquired ownership rights over such residences in all cases where they acted ‘in good faith’ without knowing that the units had been nationalized. While Social Democrat legislators saw the proposal as bringing ‘natural’ restitution through the back door, owners insisted on ‘natural’ restitution whenever possible, and compensation offered in cash at the market value by tenants, not the state. The leader of the Association of Owners of Expropriated Property, Maria Teodoru, told journalists that the Democratic Convention government prepared the draft not because it wanted to guarantee property rights in Romania, but because of European Union pressure and in an effort to deter Romanians from petitioning the European Court of Human Rights.23 The Property Restitution Law The unstable Democratic Convention, which changed cabinets three times in four years, was unable to pursue the matter further. Even if it wanted to see legislation favouring home owners the Convention was too divided to succeed, preoccupied with sharing the spoils that came with controlling vast state-owned resources and forging alliances with unlikely partners to maintain a fragile parliamentary majority. In the 2000 elections the Convention registered a resounding defeat, Ion Iliescu returned as president, the Social Demo˘ crats won a majority of parliamentary seats and Adrian Nastase became the new prime minister. The Convention disintegrated when the Christian Democrats failed to secure parliamentary representation. Eugen Plesa, the leader of ¸ the Association of Tenants in Nationalized Houses, entered parliament as a
    
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    Greater Romania Party member (and renewed his mandate four years later on ˘ the Social Democrat party list). Both Iliescu and Nastase were known for their commitment to tenants, and therefore owners expected no improvement during their term in office. But the Social Democrats were determined to bring Romania into the European Union. The closer the prospect of integration, the more sensitive Bucharest became to European Union demands. In this context, on 8 February 2001 parliament adopted the ‘Law on the Legal Status of Property Abusively Taken Over by the Communist State During the 6 March 1945– 22 December 1989 Period’ (Law 10/2001).24 The law allowed for the ‘natural’ return of private property requisitioned by the communist state and co-operative associations, and for compensation whenever physical restitution was not possible (Articles 1 and 7). It applied to property belonging to nationalized industrial, banking, insurance, mining and transportation companies, and to property confiscated from individuals sentenced for opposition to the communist regime, coercively donated to the state, requisitioned as a result of failure to pay taxes for reasons independent of the owner, or confiscated by virtue of unpublished legislation; it did not, however, apply to property that belonged to religious denominations (Article 8). Although recognized, the individual owners’ right to their abusively confiscated property (land, buildings, tools and technical equipment) could be exercised only after the courts ordered the property returned (Article 2). Owners who had received compensation by virtue of international accords could not claim ‘natural’ restitution (Article 6). For non-residential, destroyed or not returnable property owners received vouchers for privatized companies, stock market shares, goods and services (Article 9). Land on which buildings had been legally erected was not returned, and compensation was not offered for structures destroyed by natural calamities (Article 10). Private tenants living in returned properties were protected, their rental fees set by the state, legally binding lease and rental contracts had to be observed, and institutional tenants (including embassies and consulates) were automatically allowed to rent for a further five years (Articles 13 and 14). Tenants had to vacate the returned dwellings if offered alternative residential space, and rents were capped at a quarter of the tenant’s income (Article 15). Owners of buildings used by schools, clinics and hospitals, state agencies and political parties were denied ‘natural’ restitution, receiving instead equivalent buildings, company shares, goods and services. Institutional tenants could buy the property they used (Articles 16 and 17). Equivalent residential units were offered only when the initial building had been destroyed, had suffered significant transformations or had been sold to tenants by virtue of Law 112/ 1995 (Article 18). To qualify for ‘natural’ restitution, owners had to lodge restitution claims within six months of the law’s adoption (Article 21). The state agency or organization using the property had 60 days to respond, specifying
    
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    the level of compensation it was prepared to offer, if it refused to vacate the building. The owner could challenge the decision in court within 30 days. Owners of buildings used by state-owned companies listed for privatization were denied ‘natural’ restitution, being offered company shares instead (Articles 27– 28). For the first ten years after buying the residences on the basis of Law 112/1995, individual tenants could sell them only to initial owners for prices equal to the buying price. Initial owners had 90 days to announce tenants of their intention to buy out the property, and had to compensate tenants for property improvements (Articles 44 and 49).25 Although it was the first to regulate the situation of property nationalized by Law 119/1948 and a step toward ‘natural’ restitution of residential units, the law fell short of guaranteeing equitable reparation for the abuses homeowners suffered at the hands of the communist authorities. While in state care many nationalized companies saw their value degraded as a result of the corruption and mismanagement of the managers appointed according to political criteria. The law recognized the transfer of property rights to tenants who bought nationalized homes by Law 112/1995, or took them ‘in good faith’ without registering the deed. Owners insisted that the ‘good faith’ clause could not be invoked since tenants knew that the residences they occupied had been taken over by the communist state, but tenants claimed that few of them knew the requisition was abusive. Owners were required to compensate tenants for improvements to the property, but were not compensated for being deprived of their property for decades. In addition, ‘natural’ restitution was not provided for buildings used by institutional tenants, except in the unlikely case where the latter agreed to it, allowed those tenants to set whatever level of compensation they thought fit rather than the property value, and included no sanctions for refusal by mayors to answer claims for buildings used by their office. Owners could take institutional tenants to court, but even when courts ruled in their favour, the prosecutor-general could overturn the definitive verdict by recurs ˆn anulare. ı Governmental Emergency Ordinance 59/2001 extended by a year the period in which the prosecutor-general could overturn such decisions, a move the public saw as a return to the communist practice of allowing the ruling party, through the minister of justice and the prosecutor-general, to overturn court decisions according to their interests. While parliament debated Law 10/2001, the Social Democrat minister of justice, Rodica ˘ Stanoiu, drew the regional courts’ attention to ‘the social problems generated by court decisions ordering the tenants’ evacuation’. When the press criticized ˘ Stanoiu for interfering in the activity of the judges, Iliescu supported her position, rhetorically asking ‘what does justice mean when people are abusively kicked out in the street?’, and claiming that many court decisions favouring owners were based on false documents.26
    
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    Promises of financial compensation remained unfulfilled in the absence of a special law; no national budget adopted after Law 10/2001 included compensation funds. Setting aside funds for financial compensation was important since other compensation means for which the law made provision were riskier, and thus less attractive to owners. It was unlikely that owners opted for unspecified goods and services or vouchers in state-owned companies listed for privatization, since the more profitable companies were privatized long before 2001. The government first refused to regulate financial compensations offered in lieu of ‘natural’ restitution, claiming that they were not a priority for a cash-strapped budget. When owners pressured the government to reconsider its position, deputy Florin Georgescu (Social Democrat) threatened to disclose the names of the ‘hundreds and thousands’ of owners who built their homes with bank loans they never repaid and declared that ‘many [owners] bankrupted the banks in 1930 –40, and the costs were supported by the entire population before and after 1944. Some of those asking for the return of their homes should contribute more money’.27 Georgescu, however, never substantiated his claims. In 2002 the cabinet announced that 60,000 owners would be compensated over the period 2005– 15 by a central authority that would also determine the compensation level in each case, and that US$ 2.5 billion had been set aside to cover annual instalments of up to US$ 250 million. The plans to offer compensation over a decade were seen as detrimental to elderly owners, and the proposal to use national budget funds was deemed immoral. Teodoru claimed that the government knew from the start there was no money for compensation, but ‘first set rents equal to a bus ticket and then sold the [nationalized] houses for meagre prices. The government generated this situation; the government must solve it’.28 The opposition Greater Romania Party unsuccessfully tried to replace financial compensation with offers of vouchers and shares in privatized companies, on the grounds that the law unjustly affected the post-1945 generations, who contributed, through immense sacrifices, to the accumulation of ‘socialist property’ privatized after 1990. Romanian citizens should be treated equally because all made sacrifices and need to receive reparations, or at least not be affected by measures benefiting only a minority. The damages the Law 10/2001 provides for will be paid off by a generation that did not live under communism and has no guilt other than being born in Romania, [a country] where irresponsible politicians have pawned its future. By asking blameless youth to pay compensations [the law] encourages emigration and threatens Romania’s future.29 While supportive of the law in the face of European Union pressure, the Social Democrat government quietly undermined its implementation. The
    
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    government’s representative in Bucharest, the prefect, challenged the mayor’s decisions in favour of ‘natural’ restitution, and the local police tried to intimidate and harass the civil servants working on restitution cases. President ˘ Iliescu dismissed property as ‘a trifle’ and prime minister Nastase remarked that the European Court of Human Rights, which many Romanian homeowners had asked for justice, ‘was not a real estate agent’. Local authorities were criticized for not solving restitution cases expeditiously. To implement Law 10/2001, mayors’ offices opened special bureaus where owners could lodge property restitution claims, but the law unnecessarily complicated the process and seemed to deter owners from claiming back their properties. The bureaus were denounced for ‘imposing impossible conditions’ by asking from owners ‘expensive documents that are time-consuming to obtain’ and information they ‘could not provide, since the property had been in state care for the last 50 years’. The Bucharest bureau claimed that only 40 of the 30,000 restitution claims it received contained all the required documents.30 By mid-2001 local authorities had registered 210,000 claims, 128,000 of which were for ‘natural’ restitution and 82,000 for financial compensation, but resolved only two per cent of all requests. Most claimants received no reply, although local authorities were supposed to respond within 60 days.31 By 2002 only 615 Bucharest owners had received their houses back, and it was estimated that the bureau needed 40 years to resolve the 24,350 outstanding claims. By late 2003 the bureau had accepted 50,000 claims for financial compensation totalling the equivalent of US$ 5.3 billion and 20,000 requests for ‘reparatory measures’ totalling US$ 3 billion, but it had resolved only 3,475 petitions.32 The opposition criticized the slow pace of resolving requests for restitution. Deputy Kerekes Karoly, of the Democratic Union of Magyars, asserted that the government, which the Council of Europe no longer monitored, was refusing to return properties used by organizations, state agencies and private firms.33 On 27 February 2004 President Iliescu again sided with the tenants, suggesting that ‘few owners really need to resort to evacuation’, and asking for rental contracts to be extended for another year in the name of ‘a civic sense of solidarity with these people with problems, most of them retired elderly unable to pay the rent’.34 In response, the Social Democrat government announced plans to protect 1,200 tenants whose contracts expired in 2004, and who were over 70 years of age and had incomes below the national average, and asked local authorities to provide tenants with alternative dwellings within a year.35 In October owners took to the streets of Bucharest, protesting against the slow ˘ pace of property restitution, dismissing Nastase’s claims that 97 per cent of return claims had been resolved, and arguing instead that only half of confiscated land, 30 per cent of forests and ten per cent of nationalized homes had been returned to their owners.36 They also revealed that, although Law 112/1995
    
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    banned tenants who bought nationalized homes from selling or exchanging them with parties other than the initial owners for the first ten years after they acquired ownership rights, tenants and prospective buyers had started to draft ante-contracts that allowed for earlier exchanges, with the deed being transferred at the end of the ten years.37 After winning the 2004 elections, the Truth and Justice Alliance of the Democrats and the Liberals promised to speed up restitution, propose new legislation replacing financial compensation with voucher and share offerings, and assume responsibility before parliament for the matter of restitution. To date, the Alliance has been unable to fulfil any of these promises. Only ˘ months after becoming president, Basescu came under fire for having used his position as mayor of Bucharest to buy a nationalized home. Because the Social Democrats once sided with Iliescu when the public discovered that he acquired a nationalized apartment, the Alliance has gone to great lengths ˘ to block an initiative of the opposition Social Democrats to have Basescu investigated.38 European Court of Human Rights Cases Involving Romanian Owners Soon after Iliescu’s 1994 call to overturn definitive and irrevocable court decisions that recognized initial owners’ right to their property, Romanians approached the European Court of Human Rights, claiming that the decision of the Romanian Supreme Court of Justice denying lower courts the competency to hear property restitution cases contradicted the right of access to justice, protected by Article 21 of the Romanian Constitution and Article 3 of the Civil Code, and the right to fair trial, stipulated by Article 6.1 of the Human Rights Convention. Owners also insisted that Laws 112/1995 and 10/2001 contradicted the Romanian Civil Code and Constitution and placed judges in ‘the uncomfortable position of having to reconcile the Code, the Constitution and the legislation’. Romanian politicians claimed that, by seeking justice in Strasbourg, the owners exposed the country to the criticism of the international community during negotiations for accession to the European Union. In reply, the owners reiterated their resolve to fight for their property, and criticized the Romanian judiciary for dragging property restitution cases out for years and the Romanian political class for its ‘lack of resolve to adopt just legislation’.39 In the debate that ensued, the public and the press focused primarily on recurs ˆn anulare. The press revealed that, until 1996, obedient prosecutors ı honoured President Iliescu’s demands to annul hundreds of court decisions without explanation. The Democratic Convention claimed that in 1997 it appointed to the Supreme Court judges more sympathetic to owners, and recalled that in the following year lower courts were allowed to hear property
    
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    restitution cases, and as a result of this judges sided with the owners in almost 80 per cent of all restitution cases lodged that year. Owners were sceptical about the Convention’s political will to solve the problem, insisting that the prosecutor-general could initiate recurs ˆn anulare, and that politicians, ı judges, prosecutors and lawyers had bought nationalized homes under the provisions of Law 112/1995. This fact, they claimed, explained the judiciary’s ambivalent position on the issue. Teodoru, the leader of the expropriated property owners, supported the owners’ decision to approach the European Court, not only because the problem of nationalized homes must cease to be the problem of just some Romanians and become the problem of all Romanians, but also because the slow pace of restitution was unacceptable. Moreover, she claimed that even when the owners won their homes in court, tenants were refusing to vacate them and the police was unwilling to enforce court orders. Fifteen years after the collapse of the communist regime, only five per cent of nationalized homes had been returned to their owners, the rest being bought by tenants.40 By May 2003 only 1,200 out of a total of 40,000 properties claimed in Bucharest had been returned to their owners, some 100,000 houses had been bought by the tenants, and Romanian judges had not yet heard some two million claims for the restitution of buildings and land.41 Cases involving homes nationalized by Romanian communists were lodged with the European Court, starting in 1995. Four years later, the ˘ Court heard the first such case, and in 2001 awarded owner Dan Brumarescu ˘ compensation to the tune of US$ 198,000. The Brumarescu case gave Romanian owners hope, and encouraged them to petition the Court in ever greater numbers. From 2002 to 2004, the Court handed down verdicts in 58 such cases, and in the vast majority of them ruled against the Romanian state and the recursuri ˆn anulare handed down on President Iliescu’s command. The ı European Court recognized that the Romanian Supreme Court infringed the claimants’ right to a fair trial by overturning definitive courts decisions, and the lower courts denied citizens access to justice by refusing to hear property restitution cases. In most cases, the Romanian state was asked to return the property within three months to avoid paying compensation that far exceeded the amount the tenants paid to gain ownership of the nationalized property. Over the same period, the Court ordered the Romanian state to pay damages totalling more than 4.6 million euros. The cases involving Romanian owners accounted for just three per cent of all the cases the European Court heard in 2002 and 2003 (see Table 2): only 80 of the 638 cases involving former communist states of Eastern Europe and the former Soviet Union brought Romania to the European Court (see Table 3). Although the Romanian authorities were subject to penalties if they delayed payment of the compensation established by the European Court,
    
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    TABLE 2 EUROPEAN COURT OF HUMAN RIGHTS DECISIONS ON DWELLINGS NATIONALIZED BY THE ROMANIAN COMMUNIST AUTHORITIES, 1999 – 2004
    
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    Year 1999 2000 2001 2002 2003 2004
    
    Total decisions 177 695 888 844 703 718
    
    Decisions on Romanian nationalized property 1 0 1 27 22 9
    
    Total damages awarded – – US$ 153,655 2,569,793 euros 1,680,968 euros 368,970 euros
    
    Source: European Court of Human Rights website, , accessed 28 Jan. 2005.
    
    the Social Democrat government was in no rush to comply with the verdicts. It agreed to ‘natural’ restitution only in the case of a building that housed a National Art Museum collection for which compensation was ordered to the tune of 900,000 US dollars. By not returning the homes to their owners before the three-month deadline, the Romanian government appeared to opt for financial compensation. But the owners never received a penny, although
    
    TABLE 3 EUROPEAN COURT OF HUMAN RIGHTS DECISIONS IN CASES INVOLVING FORMER COMMUNIST STATES, 1999 – 2004
    
    State Albania Bulgaria Croatia Czech Rep. Estonia Georgia Hungary Latvia Lithuania Macedonia Moldova Poland Romania Russia Slovakia Slovenia Ukraine Total
    
    1999 – 1 – 1 – – 1 – – – – 3 2 – 2 – – 10
    
    2000 – 3 – 4 1 – – – 5 – – 19 3 – 6 2 – 43
    
    2001 – 3 4 3 1 – 3 1 2 1 1 18 1 – 8 1 1 48
    
    2002 – 3 8 5 1 – 3 2 5 1 – 26 27 2 7 1 1 92
    
    2003 – 11 6 6 2 – 16 1 4 – – 67 28 5 26 – 7 179
    
    2004 1 27 33 28 1 1 20 3 2 – 10 79 19 14 14 – 14 266
    
    Total 1 48 51 47 6 1 43 7 18 2 11 212 80 21 63 4 23 638
    
    Source: As Table 2.
    
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    some of them were compelled to pay property taxes even though they were not allowed to enter and use the property, which often the tenants continued to occupy. More than a year after the European Court gave him satisfaction, ˘ Brumarescu was unable to use his home because the Bucharest mayor’s office had sold part of it, and Romanian authorities regarded the transaction ˘ as valid. To add insult to injury, in January 2003 the Nastase cabinet announced plans to incorporate compensations ordered by the European Court into the compensations provided by Law 10/2001 and cover all of them by granting owners small instalments over the period 2005 – 15.42
    
    Conclusion Post-communist Romania has had difficulty accepting property restitution as an integral component of the more general process of re-evaluating the communist past. In almost all transitional justice respects, the country remains a laggard, with justice delayed amounting to justice denied in most cases. Romanians were granted access to a limited number of secret political police files only in 2000, when historians charged that the existing archive had been altered beyond recognition. Lustration was briefly discussed in 1990, but bitterly opposed subsequently. Some categories of communist-era political prisoners are still waiting to be rehabilitated. Previously collectivized land was returned in the early 1990s more under the pressure from society than as a result of governmental initiative, but it took many more years for owners to be recognized as entitled to the deed to the land, and many of them claimed they received plots of lesser value.43 The return of nationalized homes remains a highly contested topic pitting owners against tenants, the executive against the judiciary, and the conservative Social Democrats against the ‘historical’ parties. Tenants and their political allies have supported a model centred on ‘forgiving and forgetting’. Although not embraced by other post-communist countries, the model had a historical antecedent in the 1814– 15 restoration of the French monarchy, when the senate refused to return the property confiscated from the Church ´ ´ and emigre nobles during the revolution because the senators themselves had been the primary beneficiaries, having bought much of the property at artificially low prices.44 Despite Romania’s fascination with France, and its desire to imitate a country it considers its big sister in numerous respects, there are grounds for the ‘natural’ restitution of homes, which is simple, brings emotional satisfaction to those receiving the actual confiscated property, prevents the wealthier and better-connected former communists buying nationalized property offered for sale, and avoids draining the national budget by payment of compensation.
    
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    The author would like to thank the Social Science and Humanities Research Council of Canada for generously funding this study, Damiana Otoiu and Filippo Zerilli for providing valuable material, ¸ Peter Solomon, Alexei Trochev, Lucian Turcescu, Justin Penny, Nicoleta Paslaru and Octavian Leti for their comments, and Sabina Stan and Luc Turcescu for their support. 1. The studies of post-communist transitional justice are too numerous to be listed here. For comparative approaches, see Neil Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington, DC: United States Institute for Peace Press, 1995); Tina Rosenberg, The Haunted Land: Facing Europe’s Ghosts after Communism (New York: Vintage Books, 1995); Alexandra Barahona de Brito, Carmen Gonzalez-Enriquez and Paloma Aguilar (eds.), The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford: Oxford University Press, 2001), pp.218–74; and Noel Calhoun, Dilemmas of Justice in Eastern Europe’s Democratic Transitions (New York: Palgrave, 2004). 2. See Katherine Verdery, ‘Fuzzy Property: Rights, Power and Identity in Transylvania’s Decollectivization’, in Michael Burawoy and Katherine Verdery (eds.), Uncertain Transitions: Ethnographies of Change in the Postsocialist World (Lanham, MD: Rowman & Littlefield, 1999), pp.53–81; Katherine Verdery, The Vanishing Hectare: Property and Value in Postsocialist Transylvania (Ithaca, NY: Cornell University Press, 2003); David Kideckel, ‘Once Again the Land: Decollectivization and Social Conflict in Rural Romania’, in Hermine DeSoto and David Anderson (eds.), The Curtain Rises: Rethinking Culture, Ideology and the State in Eastern Europe (Atlantic Highlands: Humanities Press, 1993), pp.88–106; ´´ ´´ ` Olga Smidova, ‘Propriete et quasi-propriete immobilieres sous le socialisme et leurs mutations post-socialistes’, Cahiers du CeFRes, Vol.11 (1997), pp.129–58; Filippo Zerilli, ‘Sentiments and/as Property Rights: Restitution and Conflict in Post-Socialist Romania’, ´ Focaal: Journal of Anthropology, Vol.39 (2002), pp.57–71; Damiana Otoiu, ‘Memoire du ¸ ´ communisme, acteurs du postcommunisme: Les associations des proprietaires et des loca´ taires des immeubles nationalizes’ (MA thesis, University of Bucharest, 2004); Karin Dawidson, ‘Property Fragmentation, Redistribution of Land and Housing during the Romanian Democratisation Process’ (doctoral dissertation, Uppsala University, Sweden, 2004); Liviu Chelcea, ‘Ancestors, Domestic Groups and the Socialist State: Housing Nationalization and Restitution in Romania’, Contemporary Studies in Society and History, Vol.45 (2003), pp.714–40; Liviu Chelcea, ‘State, Kinship and Urban Transformations during and after Housing Nationalization (Bucharest, Romania, 1945–2004)’ (doctoral dissertation, University of Michigan, 2004). 3. Kritz, Transitional Justice, pp.569–87. 4. Ibid., pp.38– 42. 5. Ibid., pp.600–1 and 640– 4. 6. Karl Jaspers, The Question of Human Guilt, trans. E.B. Ashton (New York: Dial Press, 1947), pp.36, 76. 7. John Borneman, Settling Accounts: Violence, Justice and Accountability in Postsocialist Europe (Princeton, NJ: Princeton University Press, 1997). ˆ ¸ ¸ 8. ‘Stenograma sedintei Senatului din 2 iunie 1994’, Monitorul Oficial al Romaniei, partea a II-a, 11 June 1994, pp.7– 16. 9. Statement delivered at the first International Owners’ Congress, Bucharest, 13 –17 Sept. 2000, ´ ¸ citing 1994 figures; see also Otoiu, ‘Memoire du communisme’, p.7. ¸ ¸ 10. Evenimentul Zilei, 14 Aug. 2002; and ‘Stenograma sedintei Senatului din 2 iunie 1994’, pp.7–16. ˆ 11. ‘Stenograma sedintei Camerei Deputatilor din 15 iulie 1992’, Monitorul Oficial al Romaniei, ¸ ¸ ¸ partea a II-a, 16 July 1992, pp.8–15. 12. Both parties dominated the Romanian interwar political scene, were banned under communism, and reorganized themselves months after Ceausescu’s removal. Romania had one other ¸ ‘historical’ party, the Party of Social Democracy, which disappeared after being absorbed by the Social Democrat Party.
    
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    ˆ 13. ‘Stenograma sedintei Senatului din 14 februarie 1992’, Monitorul Oficial al Romaniei, partea ¸ ¸ a II-a, 17 Feb. 1992, p.17. ˘ ˘ ˆ 14. ‘Raportul Comisiei de ancheta pentru stabilirea adevarului si eliminarea suspiciunii, neıncre¸ ˘ ˘ ˆ¸ ı derii si prezentarii false a unor fapte de coruptie cu character grav, pretins savırsite ˆn perioada ¸ ¸ ˆ ianuarie 1990–decembrie 1991’, Monitorul Oficial al Romaniei, partea a II-a, 15 May 1992, pp.2–5. ˆ 15. ‘Stenograma sedintei Camerei Deputatilor din 9 iunie 1992’, Monitorul Oficial al Romaniei, ¸ ¸ ¸ partea a II-a, 10 June 1992, pp.7–18. ˆ 16. ‘Stenograma sedintei Camerei Deputatilor din 15 iulie 1992’, Monitorul Oficial al Romaniei, ¸ ¸ ¸ partea a II-a, 16 July 1992, pp.8–15; ‘Stenograma sedintelor comune ale Camerei Deputatilor ¸ ¸ ¸ ˆ si Senatului din 15 iulie 1992’, Monitorul Oficial al Romaniei, partea a II-a, 16 July 1992, ¸ pp.1–3; and ‘Stenograma sedintei Senatului din 2 septembrie 1992’, Monitorul Oficial al ¸ ¸ ˆ Romaniei, partea a II-a, 3 Sept. 1992, pp.10–16. See also ‘Pozitia Partidului Democratiei ¸ ¸ ˆ ˘ Sociale din Romania privind problematica reglementarii legislative a dreptului de proprietate’, available at , accessed 28 Jan. 2005. ˆ 17. ‘Stenograma sedintei Camerei Deputatilor din 15 martie 1994’, Monitorul Oficial al Roma¸ ¸ ¸ niei, partea a II-a, 16 March 1994, pp.2–3. The Supreme Court decision was approved by 21 votes for and 20 against. The Romanian procedure differs from the Russian supervisory review ( peresmotr dela v poryadke nadzora) by allowing the prosecutor-general to overturn court decisions without cases being reviewed again. In Russia the prosecutor-general cannot overturn definitive court decisions, but may ask the courts to review cases he considers problematic. I thank Peter Solomon and Alexei Trochev for pointing this difference out to me. ˘ For a legal analysis of Iliescu’s statement, see Corneliu-Liviu Popescu, ‘Influenta politica ¸ ˆn solutionarea proceselor privind dreptul de proprietate asupra imobilelor nationalizate ˆn ı ¸ ¸ ı ˘ ¸ ˆ perioada comunista si consecintele acestora ˆn cauzele ˆmpotriva Romaniei aflate pe rolul ¸ ı ı ˆ ˘ Curtii Europene a Drepturilor Omului’, Revista Romana de Drepturile Omului, No.23 ¸ (2002), pp.20–40. ˆ 18. ‘Stenograma sedintei Senatului din 2 iunie 1994’, Monitorul Oficial al Romaniei, partea a ¸ ¸ II-a, 11 June 1994, pp.7–16. 19. Karin E.K. Dawidson, ‘Conflict of Interest in the Restitution and Privatization of Housing since the Fall of Socialism: The Case of Central Timisoara City – a Problem of Democracy?’, Europe–Asia Studies, Vol.56, No.1 (2004), pp.119–41. 20. ‘Stenograma sedintelor commune ale Camerei Deputatilor si Senatului din 4 iulie 1994’, ¸ ¸ ¸ ¸ ˆ Monitorul Oficial al Romaniei, 11 July 1994, pp.1–8. ¸ ¸ ¸ ¸ 21. ‘Stenograma sedintelor commune ale Camerei Deputatilor si Senatului din 7 iulie 1994’, ˆ Monitorul Oficial al Romaniei, 16 July 1994, pp.1–41. 22. Evenimentul Zilei, 29 Dec. 2002. ¸ ¸ 23. Evenimentul Zilei, 25 Aug. 1999; Cotidianul, 3 Sept. 1999; ‘Stenograma sedintei Camerei ˆ Deputatilor din 10 iunie 1997’, Monitorul Oficial al Romaniei, partea a II-a, 11 June 1997; ¸ ˆ and Parlamentul Romaniei, Camera Deputatilor, ‘Raport asupra propunerii legislative ¸ pentru anularea Legii nr. 112/1995 si restitutirea unor imobile cu destinatia de locuinte, ¸ ¸ ¸ trecute ˆn proprietatea statului’, 11 March 1998. ı 24. The international community repeatedly asked Romania to respect the right to property and consider seriously the demands of the owners whom the communist state robbed of their property. Resolution 1123 of the Council of Europe Parliamentary Assembly (24 April 1997) encouraged Romania to settle the problem of confiscated property and amend Laws 18/ 1991 and 12/1995 to include ‘natural’ restitution and just compensation; Resolution A40428 (3 December 1998) asked for a ‘correct and definitive solution guaranteeing “natural” restitution or, if not possible, due compensation’. Resolution 562 of the US House of Representatives on the property abusively expropriated by former totalitarian regimes (1 October 1998) called for ‘natural’ restitution whenever possible and ‘just, immediate and effective’ compensation. ˆ 25. Monitorul Oficial al Romaniei, No.75 (14 Feb. 2001). 26. Monitorul de Brasov, 5 April 2001. ¸
    
    PROPERTY RESTITUTION IN ROMANIA 27. 28. 29. 30. 31. 32.
    
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    33. 34. 35. 36. 37. 38. 39. 40.
    
    41. 42. 43. 44.
    
    Evenimentul Zilei, 23 Oct. 2002. Ibid., 5 Aug. 2002. ˘ Propunerea Legislativa, PL 503/2001. Gardianul, 26 Oct. 2002; and Evenimentul Zilei, 14 Aug. 2002. Evenimentul Zilei, 5 Aug. 2002. Gardianul, 13 Sept. 2003, and Ziua, 27 Oct. 2004. Among reclaimed properties was the magnificent Bran Castle, the Teutonic fortress built in 1212 which Western visitors know as Dracula’s castle. The petitioner asked for US$ 26 million in compensation, if ‘natural’ restitution was denied: Cotidianul, 17 Sept. 2001. ˆ ‘Stenograma sedintei Camerei Deputatilor din 27 mai 2003’, Monitorul Oficial al Romaniei, ¸ ¸ ¸ partea a II-a, 28 May 2003. Evenimentul Zilei, 19 Dec. 2003. ˘ Adevarul, 13 March 2004. Ziua, 27 Oct. 2004. Evenimentul Zilei, 3 Nov. 2004; an ante-contract is a specific legal device in Romania applied to the sale of property and has prospective effect. ˘ Adevarul, 7 March 2005; and Ziua, 10 March 2005. Evenimentul Zilei, 5 Jan. 2003. Among the names revealed at the time were those of the supreme court president Gheorghe Uglean, the minister of defence and ambassador to Prague Gheorghe Tinca, the Christian Democrat minister of public works Nicolae Noica, the Social Democrat deputy minister of agriculture Liviu Harbuz, and Admiral ‘Cico’ Dumitrescu: Evenimentul Zilei, 22 Feb. and 30 April 2003; and Gardianul, 14 March 2003. Cotidianul, 17 Dec. 2001; and Ziua, 6 May 2003. Cotidianul, 29 Nov. 2002; and Evenimentul Zilei, 28 Jan. 2003. Verdery, The Vanishing Hectare; Dorin Dobrincu and Constantin Iordachi, Taranimea si ¸˘ ˘ ¸ ˆ puterea: Procesul de colectivizare a agriculturii ˆn Romania (1949–1962) (Bucharest: ı Polirom, 2005). Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004), pp.24–30.

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