July 16, 2002

Property Restitution in Central and Eastern Europe:
The State of Affairs for American Claimants

before the
Commission on Security and Cooperation in Europe

July 16, 2002
334 Cannon House Office Building

Restitution of Church and Communal Properties
of the Hungarian Minority in Romania:
Not Completed Yet!

Background. While neighboring countries long ago addressed and resolved the matter of property restitution, the decade-long delay by Romania constitutes an ongoing, major blow to religious freedom, civil society and the 2 million strong Hungarian minority's ability to maintain community and church life. The four historic Hungarian religious denominations (Roman Catholic, Protestant, Lutheran and Unitarian) have extensive documentation of at least 2,140 church properties illegally confiscated from them between 1945-1989 under communism (the government is in possession of a full register that it has not made available). None of these properties—save six— have been returned to their rightful owners in the 12 years since the overthrow of communism. 11 years after the fall of communism, a Law on Restitution of Private Property was adopted on January 17, 2001 hailed by the Romanian government as having "settled" the restitution issue. But in fact, this law explicitly excluded minority communal and church properties on the promise that these would be covered under a separate law. Finally, on June 25^th of this year, a "Law on the Adoption of Government Decree 94/2000 on the Restitution of Certain Properties Formerly Belonging to Religious Denominations in Romania" was passed by the Romanian Parliament. Two points are noteworthy: this law has to date not been signed into effect by President Ion Iliescu and, the law does not address the issue of minority communal properties also confiscated under communism thereby leaving this as a still unresolved issue. 

Government Decrees: the Failed Route. Considered as a goodwill gesture before the May 15, 2002 meeting of the Council of Europe's Monitoring Committee in Bucharest, on May 14 Octav Cosmanca, Minister for Public Administration, signed a document restituting 13 properties (nine of which once belonged to the Hungarian historical churches), initially covered under Government Decree No. 1334/2000. However, even the restitution of these select nine properties has been obstructed at the local level, as is the case of a former cultural center in Sovata/Szováta, Mures/Maros County claimed by the Roman Catholic Archdiocese of Alba Iulia/Gyulafehérvár. The Sighishoara/Segesvár Land Registry Office continues to refuse to deed title back to the church thereby denying restitution and consequently occupancy as well.

During the Democratic Alliance of Hungarians in Romania's (DAHR) 1996-2000 membership in the ruling coalition, a total of five government decrees were issued identifying a few select church and communal properties with the intent to swiftly return these to their rightful owners as a symbolic goodwill gesture and preliminary step to enacting the promised comprehensive legislation. In the near four years since the first government decree was issued, only in six cases have the original owners actually regained use of their buildings. Moreover, as the annex indicates, throughout the years, regaining actual occupancy even in these six cases and the others identified in the decrees, has been stymied, hindered and opposed alternately by the local and appellate public administration courts, local councils, the constitutional court and even the government's very own Ministry of Culture.

One of the most compelling cases is the return of a building located at No. 15 Avram Iancu Square in the Transylvanian capital of Cluj/Kolozsvár, restituted on paper by Government Decree 112/1998 to the Hungarian Reformed Church. Even though its restitution was one of the few requirements made by DAHR to sign a bilateral agreement with the governing Social Democratic Party, the current occupant, the Interior Ministry, refuses to move out of the building. Furthermore, in a March 22 press release, Cluj Mayor Gheorghe Funar stated that should the institutions currently operating in the building renounce their claims over the property or be forced to leave, he would not provide office space for them anywhere in the city.

Legislation on the Restitution of Church Properties: Beset with Deficiencies. While adoption of the above-mentioned June 25^th law on restitution of church properties is a significant, long-overdue step towards instituting the rule of law in Romania, resolving the minority church restitution issue, and the Romanian government fulfilling its promise, by no means has restitution actually occurred and therefore the matter cannot be considered resolved. The law, which in fact is an amended version of Government Decree 94/2000 never adopted by the Romanian Parliament and not a new piece of legislation, was widely criticized by Hungarian Churches already in its draft form. Among others, László Tokés, Bishop of the Királyhágómellék Bishopric of the Hungarian Reformed Church, voiced concern several times over the fact that (1) the text of the law did not correspond completely to the draft jointly prepared by the Democratic Alliance of Hungarians in Romania and representatives of the four historic Hungarian Churches (2) one of effected parties— the Hungarian Churches themselves whom the law is ostensibly meant to serve—were not included in the process every step of the way, and (3) the law itself leaves many opportunities for occupants and state institutions to obstruct its implementation.

The law raises two serious questions at this time: deficiencies of the legislation itself and the lack of the necessary implementing provisions which still need to be adopted by the government. 

Some of the key failings in the legislation are:

• The law fails to establish the principle of "restitutio in integrum" as the first order of restitution (as indicated in Council of Europe Parliamentary Assembly Resolution 1123/1997) which would restore ownership and all rights emanating from ownership across the board. The law 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. (Art.1/6. a.)
• In these cases, namely properties currently occupied by educational, research, health and socio-cultural institutions, political party headquarters, international organizations and foreign missions, 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 long considering the fact that 12 years have already passed.) 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 another law (No. 10/2001), namely in the form of state company stock certificates. Both options are potentially financially detrimental to the Churches. (Art. 1/6.)
• Instead of applying the "restitutio in integrum" principal, the law holds that a Committee will be established to review and decide all claims submitted on a case-by-case basis. (Art. 1/5.) This Committee will exclusively be made up of government officials. (Art. 2/1.) Only one representative from the Church in the given 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.)
• There is no deadline imposed by the law on the Committee to review and decide all submitted property claims thereby potentially drawing out the process interminably.
• The law does, however, specify a deadline of six months from the date it becomes effective to submit claims, a rather short period considering that the type of documentation claimants have to submit have not been disclosed. (Art. 1/5.) Moreover, the Committee itself will determine what substantiating documents are acceptable and the deadline for their submission once an individual claim has been submitted. (Art. 3/1.) As in the past, state institutions in question can easily hinder procurement by the Churches of the necessary documents in time.
• The Committee’s word is not final! 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 restituted via government decrees. (Art. 2/6.)
• There is no provision to compensate for confiscated properties no longer existing. (Art. 1/1.) The historic Hungarian Churches and therefore the entire Hungarian community is deprived of much-needed assets to maintain its social and civic institutions.
• 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. Precedence exists for this in 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.  

Lack of implementing provisions. As mentioned, the law does not contain these but they will be adopted within 60 days of the law going into effect. Presumably, the implementing provisions will address the deficiencies in the law noted above, as well as establish specific and comprehensive procedures for the Committee’s work which are currently lacking. It is troubling, however, that nowhere does the law stipulate that these provisions will be drafted in consultation with the effected Churches themselves. Even presuming the good intentions of the government to conclude this restitution process swiftly and justly, difficulties similar to those encountered in implementing the relevant government decrees can also be reasonably expected in the case of the law. Most notable is the probability of legal action by effected current occupants and title holders resulting in an interminable delay of justice.

After more than a decade of obfuscation, delays and reneging the historic Hungarian churches are understandably wary and have been eager to have this matter settled in short order, but not without their inclusion in the process every step of the way and not at the expense of legally sound, thorough, considered, consensus-based legislation. This, unfortunately, has not happened. Prior to the adoption of the law, in May 2002, the Churches called on Prime Minister Adrian Nastase to honor his promises and as confidence-building measure (1) implement the mentioned four government decrees immediately (2) guarantee in legislation the continuous restitution of all properties within a five year period and (3) guarantee in legislation the immediate and unqualified return of ten percent of the total properties confiscated. Only the second point was met.

At this point, the Hungarian Human Rights Foundation finds it critical to receive answers from the Romanian authorities to the following pertinent questions before a definitive conclusion can be made regarding the nature and extent of minority church property restitution in Romania:

• How does the Romanian government intend to rectify the noted deficiencies in the law?
• Will the government ensure that representatives from the historic Hungarian Churches are closely involved in drafting the implementation provisions?
• What reasonable period of time will the implementing provisions establish for the Committee to finalize its work?
• What steps will the Romanian government take to prevent obstruction of the law’s implementation at the local level including public administration courts, local and county councils and government institutions, as, for example, has been the case with Cluj Mayor Gheorghe Funar?
• When will restitution of minority communal properties be resolved in a comprehensive legal framework, including the case of the Hungarian House in Timisoara/Temesvár?

ANNEX: CHURCH AND COMMUNAL PROPERTIES
COVERED BY VARIOUS GOVERNMENT DECREES

No actual occupancy has been established except in cases of buildings marked with an asterisk ("*").

Church properties restituted on paper by Minister for Public Administration, Octav Cosmanca, on May 14, 2002 initially covered by Government Decree No. 1334/2000 (the original decree's implementation dependent on Government Decree No. 94/2000):

Other properties restituted by Government Decree No. 1334/2000:

Partial list of Church properties covered by Government Decree No. 94/2000 (not adopted by the Parliament, therefore subject to further amendment or annulment):

Church properties covered by Government Decree No. 83/1999 (not adopted by the Parliament, therefore subject to further amendment or annulment):

Church and communal properties covered by Government Decree No. 13/1998:

Church property covered by Government Decree No. 112/1998:

Hungarian Human Rights Foundation - 2002