January 15, 2003

Twelve Requirements for Progress by the Romanian Government
on Restitution of Hungarian Church Properties
and Implementation of Law 501/2002

The main concern with the law is that it fails to establish "restitutio in integrum" as the first order of restitution (as indicated in Council of Europe Parliamentary Assembly Resolution 1123/1997), which would have restored ownership and all rights emanating from ownership across the board. Secondly, the Law created a Special Committee to review and decide all claims submitted on a case-by-case basis. (Art. 1/5) As Béla Markó, President of the Democratic Alliance of Hungarians in Romania said following a January 10 meeting with Church leaders: "as the cases of the Reformed College in Kolozsvár [Cluj] and the Kalvineum in Zilah [Zalau] have proven, the return of each and every property requires a tremendous output of energy and therefore we have to battle for each piece of property individually."

The burden of proof is on the Churches to prove original ownership, while the government is in possession of the full roster of nationalized properties. The existence and procedures of the Special Committee create an adversarial, instead of cooperative, relationship with the Churches.

Requirement 1: As requested by the historic Hungarian churches from Prime Minister Adrian Nastase in May 2002, guarantee in legislation the immediate and unqualified return of ten percent of the total properties confiscated, to counterbalance the inevitable delays which will occur in implementing full restitution.

This is entirely reasonable given that for the past 13 years no restitution has occurred and it may be a full 18 years after the fall of communism that occupancy is restored to the Churches provided there are no complications. At minimum, the lease amounts should be set by market value and not determined unilaterally by the state.

One of two major flaws of the Law is that it provides "simple ownership" without bestowing the attendant rights (such as the right by the legitimate owners to retroactive compensation once restitution has occurred) in cases of buildings currently occupied by public institutions, which is the situation in 90 percent of the properties. In these cases, occupancy by the rightful owners can be delayed for up to five years! (While this time period was reduced from 10 years as a concession to the Churches, it is still too long.) During the five-year period, the restored owners can either enter into a lease agreement (the amount of which is to be determined unilaterally by the state); or accept compensation according to the guidelines established by the private property restitution law (No. 10/2001), namely in the form of state company stock certificates. Both options are financially detrimental to the Churches who, because they do not have full use of their properties, are unable to adequately serve their communities.

Requirement 3: The Romanian government must give assurances or make provisions to ensure that Special Committee decisions in favor of the claimants are binding decisions which cannot be challenged or overruled by current occupants and/or owners, including the state.

The other major flaw is that the Special Committee’s word is not final! (Art. 2/6.) Current occupants and owners can initiate legal action against decisions made by the committee, paving the way for endless legal quagmires as witnessed in the case of the majority of the buildings never de facto restored via government decrees. The possibility of legal challenge and defeat is a probability based on the many negative precedents that exist surrounding the failure to implement the prior government decrees. It bears mentioning that in all the thirteen cases where the Churches regained occupancy, it occurred despite legal action lasting several years.

An illustration is the inability of the Roman Catholic Church to regain the "Batthyáneum" library in Alba Iulia/Gyulafehérvár and ownership of its attendant 70,000 volume priceless book collection which the state continues to possess. Despite Minister for Public Administration Octav Cosmanca’s explicit request to cease action, and after losing at the Constitutional Court, the Alba/Fehér County branch of the ruling Social-Democratic Party (PSD) — led by government-appointed County Prefect Ioan Rus — continues to battle the Church in the courts.

Requirement 4: The deadline for submitting claims should be extended beyond March 2, 2003 upon consultation with the affected Churches.

Even though the deadline for submission of claims was recently extended from January 31, 2003 until March 2, this time frame is also inadequate. Already, we have reports from the churches on difficulties in obtaining the documentation set forth in the Implementing Provisions.

In many cases the land registration offices have declined to issue ownership certificates necessary to apply for restitution, handing out only photocopies from the land registry which is not acceptable according to the Law. In some cases, crucial documents have even disappeared, as in the case of the "Marianum" Roman Catholic Girls’ School in Cluj/Kolozsvár. In such situations, title would need to be reestablished and new deeds issued, which would necessarily result in exceeding the March 2 deadline indicated by the Law for submission of claims.

Requirement 5: The workload and pace of the Special Committee should be reviewed and any necessary adjustments made as soon as possible to ensure that it meets the 60-day deadline. The U.S. government should encourage the Romanian authorities not to deny any claims.

The churches have no intention of submitting illegitimate claims and the government has independent knowledge of the confiscated properties in any event. The government, therefore, should have no reason to deny claims. Even so, given the sheer volume of claims, it seems highly unlikely that the Special Committee will be able to keep the 60-day deadline it has for ruling on each case. The government should make timely and appropriate arrangements to process the large volume of claims.

Requirement 6: A confidence-building measure would be to institute bi-weekly briefings between the Special Committee and representatives from the historic Hungarian churches, NGOs and the Democratic Alliance of Hungarians in Romania, with the possible inclusion of Ambassador Michael Guest, to discuss progress and tackle issues. The adversarial relationship created between the Churches and the Special Committee by the Law and the Implementing Provisions would thereby be mitigated.

The historic Hungarian churches had specifically requested that they be included in the restitution process every step of the way. This has not occurred. The Implementing Provisions name only five government officials who comprise the Special Committee. Only one representative from the Church in the case being presented and decided will be permitted to observe the proceedings, with no right to participate in the decision-making process. (Art. 2/2) At that stage in the process, there is no more allowance for the Churches to submit additional information or defend their claims.

There is no provision to compensate for confiscated properties which no longer exist. (Art. 1/1) The historic Hungarian churches and therefore the entire Hungarian community is deprived of much-needed assets to maintain their social and civic institutions.

Requirement 8: Amend the Law and Implementing Provisions to specify who evaluates the state of properties at the end of the probable five-year occupancy period in cases of occupation by public institutions, thereby preventing future misunderstandings.

At the end of the probable five-year occupancy period in cases of buildings currently occupied by public institutions, the current tenant’s only obligation is to restore the condition of the property to the state it was in at the time of the Special Committee’s final decision. This provision completely ignores the fact that the churches were deprived of buildings in excellent condition, which have deteriorated significantly in the intervening years. In fact, many of the properties being claimed are in very poor condition.

Requirement 9: Give the churches tax refunds for prior years in those cases where they have not regained full occupancy.

In those cases where the Churches have regained title but not occupancy, they have nevertheless had to pay property taxes emanating from ownership. One example is the Gheorghe Sincai High School in Cluj, which the Hungarian Reformed Church was able to partially reoccupy in December 2002. The Church has consistently been paying an annual 70,000,000 ROL ($2,300) in taxes.

The law does not exclude financial "compensation" by the rightful owners to the Romanian state to cover costs for maintenance and improvement of the buildings since their confiscation in the late 1940’s. Precedents for exactly these types of charges being applied are the cases of the Zsuzsanna Lorántffy High School, restored to the Hungarian Reformed Church via a governmental decree but not occupied in full by it, and the Roman Catholic Bishop’s Palace, both in Oradea/Nagyvárad.

Requirement 12: Implement the law on restoring to their rightful owners ecclesiastical objects, baptismal records and church archives seized by communist authorities.

Hungarian Human Rights Foundation - 2002