Old compensation decisions can be set aside by the National Commission: the Constitutional Court confirms it, with one exception

A mayor’s decision proposing compensation to you can be set aside by a commission created much later, and the Constitutional Court says that this does not breach the Constitution. Two cases, one referred by the Bacău County Court and one by the Bucharest Court of Appeal, were dismissed together. This is the second time this summer that the constitutional court has refused to widen a reparation right for the abuses of the communist regime, after it also held that it cannot add new categories to the law on compensation for the victims of political persecution.

The contested provisions are three paragraphs of Law no. 165/2013, the law that sought to close the process of restitution of immovable property abusively taken over between 1945 and 1989. Article 17(1)(a) empowers the National Commission for Compensation of Immovable Property to validate or invalidate, in whole or in part, the decisions issued by the entities vested by law that contain a proposal to grant compensatory measures. Article 21(5) allows the secretariat of the commission to request additional documents from any institution, while Article 21(8) governs the validation or invalidation itself.

In one of the cases, the decision at issue had been issued by the mayor of the town of Onești in April 2006, following a notification filed in 2001. It had never been challenged in court and had remained in force for more than a decade, until the commission resumed its review of the file. The authors of the exception argued that, over that period, a possession within the meaning of the European Convention on Human Rights had come into being, or at the very least a legitimate expectation of compensation.

What it changes in practice

The first effect is that the commission keeps its power of review. The provisions remain applicable, and the Court found them constitutional in the light of the criticisms raised, by a unanimous vote. The decision is final and generally binding from the date of publication, under Article 147(4) of the Constitution.

The second effect is the most important one for anyone with a pending file. The Court reaffirms that, until the National Commission issues the decision granting compensation in points or, under the former legislation, until the Central Commission issued the compensation certificate, the entitled person has only a mere expectation of obtaining the reparatory measures. That person does not hold a right of claim against the State. Consequently, a mayor’s decision containing a proposal for compensation, however old and however unchallenged, does not by itself produce effects in the beneficiary’s estate.

The third effect is the limit of that power, and this is where the useful part lies. By Decision no. 686 of 26 November 2014, the Court had already established that the same provisions are constitutional only in so far as they do not apply to decisions issued in execution of court judgments by which the courts have ruled irrevocably or finally on the capacity of entitled person and on the extent of the right of property. The Court explains why that reservation did not apply here: in the present case there was no court judgment, but an administrative act. The reservation does, however, remain valid for anyone who is in that situation.

The fourth effect concerns what cannot be criticised before the Court. The length of the administrative procedures, the slowness of the restitution proceedings and the successive amendment of the legislation are, the Court says, matters of fact that concern the application of the law, not its constitutionality. They cannot on their own found an exception of unconstitutionality.

What has changed compared with the previous situation

At the level of positive law, nothing changes. Law no. 165/2013 remains in its current form, with all the powers of the National Commission intact.

What is clarified is the relationship between the new law and the earlier ones. The Court points out that Law no. 165/2013 does not repeal the previous restitution legislation but supplements it and, in certain respects, amends it, by setting precise time limits for each administrative stage and the manner in which judicial review is to be exercised. The decisive argument is that this law did not add new conditions: the conditions the applicant had to satisfy in 2006, under Law no. 10/2001, are the same ones the commission verifies today.

The legal characterisation of the review is also clarified. The authors described it as an unregulated remedy that can be used at any time against an administrative act which has already become final. The Court describes it differently: an additional administrative review, intended to secure the lawfulness of the right recognised by the entity that settled the notification. In the Court’s wording, confirming a right with greater certainty does not amount to disregarding it.

Finally, the European context of the law is restated. Law no. 165/2013 was adopted in response to the pilot judgment of 12 October 2010 in the case of Maria Atanasiu and Others v. Romania, by which the Romanian State was required to create simplified and foreseeable procedures. That same judgment left the State a wide margin of appreciation as to the means, and the Court relies on that margin.

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