Vol. XV No.10
October 2010



 Romania Offers Piddling Compensation to Former Political Prisoners

In 2009, for the first time since the fall of communism, the Romanian Parliament established a framework for compensating persons convicted and persecuted for political crimes during the communist era; but one year later it added a provision capping that compensation at an amount which turns the law into an almost meaningless gesture. Before passage of the law in 2009, victims of the communist regime could apply for restitution only based on Romania’s existing restitution laws, i.e. Law 10/2001 (regarding abusively confiscated property taken by the Romanian state between March 6, 1945 - December 22, 1989), and Law 247/2005 (regarding revisions and additions to the restitution regime) which dealt only with restitution for certain stolen properties -- those persons convicted of political crimes, or against whom administrative measures were taken by the state for political reasons, could not obtain compensation for those abuses. In an attempt to rectify this legislative failure, the Romanian Parliament in 2009 passed Law 221/2009, which provides restitution for political persecutions which occurred during the period between March 6, 1945 and December 22, 1989. Law 221 represents the only basis upon which the victims may assert a claim for restitution for such abuses.

The Parliamentary intent was to adopt Law 221 in recognition of the pain and suffering of persons who were convicted during the communist era of crimes based solely upon their political opinions. However, only one year after Law 221 came into effect, an amendment to it was passed to set limits upon the amount of compensation allowed for damages for pain and suffering. The severe limitation on the amount of compensation to be granted to political victims of the communist regime turned the hope for justice initially found in Law 221 into an illusion for these hapless victims.

The purpose of this article is to both describe the method to obtain compensation from the Romanian state for an “entitled person” under the provisions of the law, as well as to focus attention upon the appalling limitations imposed upon such compensation in the hope that some alternative method of adequate restitution might be afforded to the victims.

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Main aspects of Law 221

Persons to whom Law 221 is and is not applicable
The provisions of Law 221 are applicable to persons who were convicted of political crimes between March 6, 1945 – December 22, 1989, or any person whom administrative measures were taken against for political reasons. Law 221 is also applicable to the following other categories of persons: (i) to those persons whose rights are described in Decree-Law no. 118/1990 - this Decree-Law refers to the award of rights to persons persecuted for political reasons by the communist dictatorship, as well as persons deported abroad or held as prisoners; (ii) to those persons whose quality as fighters in the anti-communist resistance was recognized according to certain provisions of Government Emergency Ordinance no. 214/1999; (iii) to those persons who were convicted of crimes referred to by Law 221, and who had previously obtained the termination, cancellation or cassation of the respective court decisions, until the entry into force of Law 221, provided that they had not benefited from the remedies set forth in Law 221.

Law 221 is not applicable to persons who were convicted for crimes against humanity, as well as to persons who were convicted of having promoted racist or xenophobic ideas, concepts or doctrines. In other words, the provisions do not apply for the most part to the convictions for crimes committed during the military dictatorship of Marshall Ion Antonescu in World War II.

What is a political conviction?
Law 221 is applicable to those persons who were convicted of political crimes defined as a conviction issued during the period March 6, 1945 – December 22, 1989, by court decision, for any conduct performed before or after March 6, 1945, which was intended to oppose the totalitarian regime.

Which convictions are political in nature?
Law 221 specifically states that convictions which are political in nature are those convictions which violate certain laws expressly set forth in Law 221. The law specifically describes these violations, which include matters regarding the security of the state; the protection of the state economy; and/or protection against holding or selling weapons. In situations where the conviction is based on a law stated to have a political basis, there is no need for the court to assess the political nature of the conviction.

There is a second category of political convictions for crimes set forth in the Criminal Code in force between March 6 1945-December 22, 1989. In this case, however, the convictions will be considered of a political nature only if the person’s intent was to express their opposition to the totalitarian regime or their affiliation to the principles of democracy. More specifically, the offender’s intent must have been one of those expressly stated within Government Emergency Ordinance no. 214/1999 as a “fighter in the anti-communist movement”, i.e.: to protest against the communist dictatorship, communist theory or the abuse of power by those who held political power; to support or attempt to implement the principles of democracy and political pluralism; to participate in propaganda for reverting the social order until December 14, 1989; to express opposition utilizing weapons in order to eliminate the communist regime by force; to respect and recognize fundamental human rights and liberties, and to eliminate discriminatory measures on grounds of religion, political opinion, wealth or social origin.

In regard to this second category of convictions, the political nature of the respective convictions must be assessed by the court based on the specific background that was the basis for the conviction.

What were the administrative measures that were political in nature?
Law 221 specifically defines administrative measures which were political in nature. These acts are defined as any measure taken by the former communist Militia or Securitate in the dislocation of persons by force into new domiciles; the incarceration of persons into forced labor units or camps; and the establishment of any forced labor, provided that any such measure was based upon one or more of the normative acts specifically mentioned within Law 221.

Persons who were incarcerated in labor camps, or dislocated from their homes, must verify whether the measures taken against them at that point were based on any of the legislative acts mentioned by Law 221, since this is the only way in which they can make a claim for compensation based on the provisions of the Law. For this reason, it is extremely important to have supporting documents which can be submitted as evidence in court to prove the reasons why such measures were taken against them.

Another significant aspect which must be taken into account by potential claimants refers to whether any confiscation of their property was a result of the political conviction or administrative measure taken against them or not. The claimant must actually prove to the court that the confiscation of property took place as a result of a political conviction rendered by a court or because of administrative measures of a political nature, and not as a result of the nationalization laws which had general applicability to all Romanians at that time. For instance, in cases where individuals had their property confiscated by the state based on the nationalization decree no. 92 of 1950, those persons cannot base their claim on Law 221 but instead should have made claims based on restitution laws such as Law 10/2001 – for which the statute of limitations expired in February 2002.

Persons entitled to restitution based on Law 221
According to the provisions of Law 221, any person who was convicted of a political crime, or to whom an administrative measure of a political in nature was taken is entitled to restitution. After the death of this person, the spouse or descendents up to the 2nd grade inclusive are entitled to make a claim for restitution.

Parties involved at trial
A person interested in obtaining restitution based on the provisions of Law 221 should be aware that, after submitting their claim, the other parties required to be included in a trial before a court will rule on the claim must be the following: the state, as the opposing party, represented by the Ministry of Public Finance, as well as the state prosecutor. The court with jurisdiction over these matters is the Civil Department of the Tribunal in whose jurisdiction the interested party is domiciled.

What compensation is available under Law 221?
Based on the provisions of Law 221, claimants may make a request to the appropriate court to compel the state to award compensation for pain and suffering inflicted upon them as a result of their politically motivated conviction. When assessing and establishing the amount of the compensation, the court will take into account certain criteria set by law, including the duration of the prison term, and the harm suffered by the claimant either physically, psychologically or socially.

Shamefully, however, even after the court has established that a serious level of harm was inflicted upon what was otherwise an innocent person, the amount of compensation that can be awarded is limited to the piddling amounts set forth in the amendment to Law 221, i.e. €10,000 for the person who had been convicted of a political crime between March 6, 1945 and December 22, 1989, or other administrative measures; €5,000 for the spouse and descendants of the 1st grade; €2,500 for the descendants of 2nd grade.

Why did the Romanian Parliament determine that the State’s liability to the victims of communism for such heinous acts should be limited to no more than €10,000? How can the suffering of these persons be quantified at such a meager amount? Most of the victims had everything taken from them. They were imprisoned. Their families were deported to other parts of the country; most of the time, their families were divided and forced to live in separate areas without having the possibility to leave their new forced domiciles in order to even see each other. They also had their homes and everything they owned taken from them. Great tragedies occurred which often lead to the death of family members or to other tragic events from which they could not recover. Victims often lost their health and suffered for the rest of their lives from the acts perpetrated by the Romanian State. How can Romania consider this limited compensation as just in light of the enormity of the suffering of these individuals?

The state justifies these restrictions on the fiscal limitations imposed by a difficult economy and the need to better control expenses from the state budget. But after twenty years of dickering with the significant obligation that Romania has to its victims, this seems like a miserable excuse. Romania could certainly have found other means for compensation besides cash payments such as grants of long-term bonds.

In addition to the compensation that can be obtained for pain and suffering, the claimants may request the court to compel the state to award them compensation for an amount equivalent to the value of the assets that were confiscated. Such compensation may be received only in cases where the claimant has not previously received restitution for these assets based on the provisions of the restitution laws. Also, in case a person has submitted two separate claims, one grounded on a property restitution law, and the other one grounded on Law 221, and compensation is to be awarded based on the latter, then the procedure initiated based on either Law 10/2001 or Law 247/2005 will be terminated by law.

In cases where the political conviction resulted in the termination of certain civil rights or the person’s decrease in military rank, the claimant may request that the court issue an order of rehabilitation. Any of the claims mentioned above may be submitted to the court within a period of 3 years from the entry into force of Law 221 and there is no stamp tax or other court fees that are applicable. In addition, the claimant may ask the court to determine the political nature of the conviction and/or of the administrative measure, and this request is not subject to a statute of limitations or to the stamp tax.

Necessary documents
Most of the persons who are entitled to make claims for compensation based on the provisions of Law 221 have no documents that can attest to the measures taken against them. They had no means to preserve such documents when they were imprisoned or deported for life and were never able to return to their homes. Consequently, in these cases, the court is called upon to take all necessary measures in order to reconstitute the file of the claimant. For this purpose, requests may be submitted to the National Archives or to the county departments of the Archives, to CNSAS (the National Council for Studying the Archives of the Securitate) and an opinion of the Association of Former Political Prisoners from Romania may be requested. In order for the court to render a decision, the file should include the conviction judgment, the minutes attesting to the confiscation, or any other documents attesting to the political nature of the conviction or administrative measures and also attesting to the damage suffered. Furthermore, in cases where the claimant is not the person who suffered the respective harm, but is the spouse or a descendant, documents attesting to the relations between these persons must also be submitted in the file.

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In essence, the Romanian Parliament has concluded that the persons who suffered most under the totalitarian rule of Romanian communism are to receive the least compensation. The Parliament has decided that persons who lost their liberty for years on end, suffered enormous humiliations and the loss of their health can be adequately compensated by no more than €10,000 and a piece of paper that repatriates them. This is the effect of the new amendment to Law 221.

Granted that Romania is not a rich nation and that in these dire economic times, money for restitution is scarce – particularly when state employee wages have been cut by 25%. But is a tiny cap on compensation the only solution that the Parliament could find? Might compensation in some other form, e.g., long-term bonds or grants of title to some of the State’s vast land holdings (also mostly stolen from its people by the communists), which are not otherwise claimed for in restitution, have been considered?

Surely, it was a sign of progress for Romania to finally recognize the tragedies and horrors that the communist regime inflicted upon its victims through compensation; but setting such meager limits to the amounts that can be awarded for pain and suffering has turned a noble endeavor into an unjustified transgression -- especially in light of the fact that Law 221 is the only means that political victims of the communist regime have to obtain remedies for their heinous treatment by the state.

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Editors Note: It is our policy not to mention our clients by name in The Romanian Digest™ or discuss their business unless it is a matter of public record and our clients approve. The information herein is correct to the best of our knowledge and belief at press time. Specific advice should be sought from us, however, before investment or other decisions are made.

Copyright 2010 Rubin Meyer Doru & Trandafir, societate civila de avocati. All rights reserved. No part of The Romanian Digest™ may be reproduced, reused or redistributed in any form without prior written permission from the publisher.

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