Lawyers: We have cases which have yet to be solved after 10-11 years

     The problem of compensating those whose assets were seized by the communist regime is far from solved, and lawyers and their clients are at the end of their wits. The state's shares in the Proprietatea Fund have been exhausted, and the law which everyone is waiting for has yet to appear.
     Florentin Timoianu, a partner at law firm Rubin Meyer Doru&Trandafir, involved in the retrocession of the Bran Castle, told us that there are cases that are still unsolved which go back to the time when the restitution laws first appeared.
     "We have restitution cases which have yet to be solved after 10 - 11 years. It will most likely take a few more years for some of them to be solved", the lawyer said.
     Valentina - Violeta Topor, who runs her own law firm and also works with VMC Legal Consulting, mentions the same problem: there are people who are still waiting to be compensated, 11 years later. Some of them are not even alive anymore.
     * Valentina-Violeta Topor: Only 20% of the total number of compensation cases were solved, on a national level
     The authorities have only solved 20% of the total number of retrocession cases on a nationwide level, said Valentina-Violeta Topor.
     According to the law no. 10/2001 (amended through the law no. 247/2005, which was later rectified as well), the people entitled to compensation need to submit their cases with the mayoralties, which in turn would send them to the prefecture, together with the decision for awarding compensation, for the issue of the legality certificate. In the end, the cases arrive at the Central Commission for the Setting of the Rewards of the National Authority for the Restitution of Properties (ANRP), which makes the final decision.
     The problem is that in most cases, the plaintiff's cases are either being bounced around between the mayoralties, the prefectures, and the Central Commission, or they are being kept on "stand-by", because the administrative institutions are delaying the issuing of the compensation decisions.
     * Mind-boggling explanations from the mayoralties
     The mayoralties' excuses for the delays in solving the cases beggar belief. Valentina-Violeta Topor said: "We have a few cases that are still in wait at the mayoralty of Bucharest, even though it rendered a compensation decision in that case ever since 2003. The decision of the mayoralty mentions that if the property can not be restituted in kind, the former owner will receive the equivalent value, once the methodological norms are implemented. Later, in 2005, when the law no. 247 concerning the granting of equivalent compensation was passed, we have asked that the cases be submitted along the already established road, for the effective granting of the compensation".
     However, the Mayoralty of Bucharest did not relay the briefs to the prefecture. The institution said that the compensation decision of 2003, only stipulated that the granting of equivalent compensation would be proposed later, after the passing of the law, the lawyer says. The reason provided by the mayoralty beggars belief: its officials said that they can not propose the granting of compensation, because the cases had already been solved, the quoted lawyer says.
     *  Valentina-Violeta Topor: There are many laws which are supposedly created with good intentions in mind, but their implementation is obstructed precisely by the institutions of the government
      "There are also cases where the people who are entitled to compensation are not allowed to access their papers to complete their briefs. Especially since the law no. 247/2005 came into effect, I have seen what I would call connivance of the authorities in denying access to whatever documents they have in their archives, using the typical excuses: "we are only allowed to release them to the courts, the police and to notaries...", says Valentina-Violeta Topor, who recounts how in 2005, she requested from the Romanian National Archives a copy of the appendix to the law 119 of July 11th, 1948, which concerns nationalization, which includes the list of nationalized companies, but its clerks said that they no longer had it.
     The lawyer later asked the government to release the documents in question (from which it had already obtained them on a different occasion), but the result was the same.
      *  Hurdles at the ECHR as well
     Valentina-Violeta Topor says that she faced situations where the domestic courts delayed the drafting of the final ruling unjustifiably, to prevent the ruling from being challenged with the ECHR in due time.
     The lawyer explained: "The deadline to notify the ECHR is 6 months from the moment the domestic courts issued their ruling, and sometimes the domestic courts delay the drafting of the ruling by more than six months".
     There were cases where the ECHR accepted to receive complaints based on a certificate of filing (in other words in the absence of the final ruling). The lawyer complains that the same Court, with the signature of a Romanian advisor, rejected cases claiming they were incomplete: "This kind of behavior reeks of cynicism. Just like the ruling in the pilot-case Atanasiu versus Romania, of October 2010, by which the ECHR suspends the solving of the cases of Romanian citizens and radically changes its stance on the question of reparatory measures".
     * Is going to court a solution?
     When the mayoralties or the prefectures procrastinate on awarding the compensation, lawyers can ask the courts to issue a ruling which can replace the restitution decision. Even in such a situation, the compensation procedure proves to be difficult, because the files get stuck at the National Authority for the Restitution of Properties (which is the one that actually issues the restitution deed).
     "It doesn't mean that if I was awarded a definitive ruling today, I would necessarily obtain the compensation deed this year. The ANRP drags its feet", Florentin Timoianu explains.
     Valentina-Violeta Topor concludes: "The courts should fully do their job and issue rulings directly, concerning the notification on the restitution of assets in kind, as well as the notification on the granting of equivalent damages, by directly establishing the amount of the compensation that the plaintiffs are entitled to." In his opinion, the court ruling would have to be the equivalent of the compensation deed issued by the Central Commission. 

     * Lawyers waiting for the new law dealing with the issue of compensation
     By the end of July, the Romanian government needs to come up with a new law on the issue of compensation, after the European Court of Human Rights set an 18-month deadline for Romania to solve this issue through the pilot decision of October 2010, to solve the problem within 18 months (applicable starting with January 2011).
     Florentin Timoianu says: "We hope that the draft of the new law will be put up for public debate as soon as possible, and that it will comply with the principles of the Romanian constitution, as well as those of the ECHR".
     All we currently now about the future law is that the authorities want to cap the maximum amount which can be awarded as compensation and spread out its payment, according to a report of the European Center for European Policies.
     In the lawyers' opinion, the simultaneous application of these two measures is unacceptable. Valentina-Violeta Topor says that if the new law were to be implemented in its current form, it would go against the guarantee of the right of ownership, stipulated by the Constitution, as well as with another article of the Constitution, "Citizens have equal rights", since some of the owners have already been compensated at a fair value for the assets that were taken from them during communism.
     The representative of Rubin Meyer Doru&Trandafir considers that capping and spreading out the payment of the damages should not be done in a simplistic manner, along the lines of "all the unsolved cases will be paid X in damages spread out over Y years", because it would create major issues of fairness and discrimination among those who have already been compensated and those who will be compensated later.
     If these two measures (the capping of the payments and the scheduling) were to be implemented simultaneously, we could see a new wave of lawsuits filed with the ECHR, because aside from the principle of fairness, this would also violate the principle of the non-retroactivity of the law, Florentin Timoianu concludes.