Vol. 2 No.9  

Law changes place public space under threat

Public parks and gardens are under threat from the latest restitution laws, argue Laura Purtan and Alexandru Iavorschi of Salans

      The latest laws on restitution have made it easier for former owners of property to take away some of Romania’s precious public spaces.
      Law no. 247/2005 regarding the reform in the field of property and justice, along with adjacent measures, brings certain amendments and completions both to Law no. 169/1997 (which amends and completes Law no. 18/1991) and to Law no. 10/2001, that regulates the legal status of real estate properties abusively taken over during the communist regime.
      A first consequence of this law coming into force was a large number of restitution claims submitted to the Bucharest City Hall and to town halls nationwide requesting ownership rights over pieces of land pertaining to parks and public gardens, playgrounds, public squares,  urban green areas or surfaces used in residential developments.
      For example, submissions claimed approximately 28 hectares of Parcul Copiilor and 47.59 hectares of Parcul Titan-IOR, both in Bucharest. The supposed landowner of Parcul Bordei claimed the entire surface, with a wish to develop office buildings or hotels on the area. There are many other similar examples. In some cases, part of the land within parks was already restituted. Investors craving profits from lucrative real estate investments, with the aid of ambiguous regulations, has led to a dramatic decrease in the already few green areas in Bucharest.

Law critique

      According to Law no. 247/2005 “the administrative deeds by which lands subject to restitution claims for private properties were transferred to the public or private domain of the state or of regions, suspend their effects regarding such pieces of land until the settlement of such claim by the land commission, except for the lands already part of the civil circuit. After validation of restitution, the land shall be transferred to the land commission reserve in order to be given into possession.”
      Heavy criticism of this clause has come even from the Romanian Parliament, based on the fact that these assets are exclusively subject to public property; consequently they cannot be part of the private domain of the state or of regions.
      According to certain members of Parliament who initiated a law to modify Law no. 247/2005, this clause is in blatant breach of the provisions of the Romanian Constitution, of Law no. 213/1998 on public property and public property protection and of the Emergency Ordinance no. 195/2005 on environmental protection. According to these norms, the object of public property is clearly defined, with all parks and green areas exclusively the object of this definition, and the reassignment of lands belonging to green areas cannot be changed.
      In the opinion of these MPs, the extent of the phenomenon and the lack of control over it may lead to the aggravation of the situation both from a legal, environmental and urban planning perspective, with consequences difficult to estimate. Therefore this experience may be a good opportunity to make an in-depth analysis of future regulations in the field and their incumbent risks.
      Similar initiatives emerged in the Romanian Parliament. For example, there is a proposal to supplement Law no. 10/2001 in the sense of exclusively establishing indemnities in exchange for the real estate properties assigned for parks, public gardens and playgrounds.
      Another draft law proposes to amend Title V of Law no. 247/2005, in the sense of exempting from suspension all deeds referring to lands subject exclusively to the public property regime, defined in the Constitution as being inalienable, non distrainable (which cannot be claimed by the public or enforced) and imprescriptible (where restitution claims may be filed by the state at any time), further referencing organic laws - those approved by the Parliament with an absolute majority of votes.
      It is not known to what extent Law no. 247/2005 shall undergo essential amendments as per above, considering the pressure Romania is subject to from European bodies and the EU accession. Thus, the latest European Court of Human Rights (ECHR)’s decisions were in favour of former owners and bound the Romanian state to enforcement and payment of damages.

Long process

      Given that there are over 40,000 restitution claims in Bucharest alone and the administrative process of settling such files is extremely slow, it is possible that in the future, the Romanian Government should take celerity measures in the process of property restitution resolutions. Considering the spirit of the latest ECHR decisions constantly demonstrating the principle of in-kind restitution, there is the possibility that indeed, in practice, as well as in cases where the legislation is ambiguous, the applicable rule would also be the restitution in kind to the detriment of the above-mentioned situations. This is why investors should pay attention to the situations of restitution claims on grounds of Law no. 10/2001 upon properties where they intend to develop real estate projects.
      It is obvious that the observance of the private property right is one of the basic principles in the development of society and Romania in trying to demonstrate that the same reasons apply in internal justice. There is a vicious circle and property laws should be drafted and implemented in the spirit of the law and the principles representing the basis of the continental law system.