The purpose of this article is to bring into discussion the retrocession, particularly what this proceeding represents, but also which the most common situations encountered in the past twenty years to question are. Even following a relatively long period of time, this problem of retrocession has not disappeared from the daily newspapers, remaining a controversial aspect as part of the social life in Romania.
1. Concept and context
Restitution is a way of acquiring property, introduced by Law 18/1991, the so called ‘law of restitution’. On the basis of this law, property rights were reconstructed, first on the lands, then on the constructions which have been nationalized during the communist period.
In a few words, retrocession means giving back a right, an asset or a field to someone who has forcefully ceded it before. The nationalization, on the other hand, is the process in which land and constructions have been confiscated, in an abusive manner, during the communist regime, in order to supersede the private property.
Referring to the procedural aspects, it should be mentioned that the proof of the right to property is made with the title emitted by the administrative authorities competent in this regard. These authorities are the Local Commissions of law enforcement and the National Authority for property restitution.
As far as the legislation is concerned, in our country, the main legislation applicable is Law 18/1991, which, during the last years, underwent several modifications through Law 1/2000 and Law 169/1997. Law 18/1991 with further modifications refers to the restitution of the lands situated outside the city, and also regulates the situation of lands which are part of the built area of a city or village. Particularly in relation to Law 18/1991, Law 169/1997 was perceived as having a pronounced character of completion. Law 169/1997 was adopted six years after the entry into force of Law 18/1991, which suggests that its purpose was to complete the deficiencies identified throughout the six years of judiciary practice. Other minor laws were also conceived in order to complete the provision of the already existent legislation.
2. The impact of the concept in the Romanian judicial system
To begin with, the process of restitution can be seen as an additional argument to the fact that, in a democratic system, the right to property is respected and it also represents a way of repairing the inequity created through nationalization. Basically, the notion of retrocession implies a ‘restitutio in integrum’, namely a restoration to original condition. In other words, the retrocession relies on one of the primary guiding principles contoured by the Roman law. According to the judiciary practice of the last twenty years, one of the most important problems in this context is the situation when the restitution to original state is not possible. In such cases, the restitution is accomplished through equivalent.
Considering that Romania is not the only country that has experienced a communist regime, restitution has also been applied in the other ex-communist countries, according to specific situations and in ways which would better lead to its purpose.
In the past years, Romania has lost numerous lawsuits at the European Court of Human Rights on the restitution of properties confiscated by the communist party. As a consequence, the ECtHR has given the state a deadline for the adoption of the legal framework required to ensure the effectiveness of Courts’ decisions in case of repair lawsuits gained by the former owners, just like other former communist states. Consequently, the Government pronounced that unitary legislation on this topic should be adopted until April, 2013.
One of the most problematic situations of restitutions is when a public building has been built on the confiscated field. The demolition of the building would harm not only the infrastructure and the financial resources of the city, but it would also be detrimental to the public interest. Economically, it makes no sense to demolish a building, only to rebuild it somewhere else later, especially since the expenses would be significant. Also, the demolition and reconstruction require a period of time during which city residents would be deprived of the use of the public services, for instance buildings which in the present serve as hospitals or schools.
Of course, these arguments do not entitle the perpetration of abuses by the authorities who should apply the rules of restitution. It is unacceptable for a commission to refuse the restoration of the ownership title to a person, for the simple reason that the land in question is used for other purposes. Most often, in these situations the former owners are indemnified either by granting a similar field in a different location or by an equivalent compensation in money.
Another controversial situation arises when the current owner has not significantly changed the estate, but he or she invested in it. For instance, the current owner of a nationalized building did not demolish the construction, but expanded the building or connected it to the electricity network. In this regard, a Court from Suceava stated that the former owner should be compensated and the proprietary title of the current owner maintained, as he made substantial investments regarding the estate in question (Sentence No. 1737/October 13, 2009).
Through retrocession, the former owners have the chance to retrieve the estates that were confiscated during the communist regime. The possibility of recourse to restitution is a guarantee to the observance of the right to property. It also means that some of the negative effects of the communist regime have been identified and that measures have been taken in order to reduce them.