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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. |
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. 