Private immovable Property Restitution in the former European communist countries
UIPI Property Restitution Conference in Brussels, 30-11-2010
When in 1989 the Berlin wall felt, the citizens of the former eastern european countries were given back their stolen freedom, but not their stolen properties!!! UIPI is giving a continuous battle for Restitution of immovable property Property Rights in the former communist countries of eastern Europe, since 1990.
UIPI is also giving political support to our property restitution seeking members in the former communist countries (Poland, Czech Republik, Estonia, Slovenia, Romania, Serbia & Albania). Here are some important documents on Property Restitution.
UIPI filed a petition to the Petitions Committee of the European Parliament, asking for a solution to the problem. The European Parliament Petitions Committee considered the petition as admissible and after an official public tender, finally presented on May 4, 2010, two studies, of which you can find here by the executive summaries:
Study on the Private Property Issues following a change of political regime in Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Romania & Serbia
Study on the Private Property Issues following the regional conflict of Bosnia-Herzegovina & Kosovo
THE UIPI CONFERENCE (30-11-2010, Brussels)
UIPI organized an one day event dedicated to the problems of Property Restitution in countries of Western Balkans on 30th of November 2010 in Brussels, aiming to provide further insights into the situation of property restitutions in Western Balkans following the work already done on behalf of the European Parliament Petitions Committee in relation to UIPI Petition (No 0665/2006). EP Vice President Edward McMillan-Scott presented his remarks in the Conference. A summary of the study commissioned by the European Parliament and national reports by our colleagues from national property owners organisations from Albania, Croatia, Romania and Serbia was presented by its authors and a representative of the DG Enlargement explained the Commission's position on the matter. Finally a UIPI declaration was adopted by the Conference and the UIPI Executive Committee.
Other documents and links concerning Property Restitution:
Violazioni dell Diritto di Proprieta, report by Giovanni Gagliani Caputo, Confedilizia, Roma, 2010
UIPI Declaration of Bucharest, 2008
UIPI Declaration of Tirana, 2007
UIPI Report on Property restitution efforts in Eastern European countries, 2005
Declaration of Thessaloniki, concerning the Balkan countries, May 2004
Declaration of Belgrade, on Property Restitution in Serbia, Nov 2003
The Stuart Eizentat Testimony in the American Congress, March 1999
Summary of Reports, by the US Embassy in Berlin, 2003
Important decision of ECHR on property Restitution, 2005
Rental problems after restitution: 2000 Czechs appeal to ECHR!
Search in HUDOC for the decisions (Case Law) of ECHR, using the keywords: "property restitution"
More recent reports in the Members Area
UIPI PETITION TO THE EUROPEAN PARLIAMENT, ABOUT THE NEED FOR PROPERTY RESTITUTION AND THE PROTECTION OF PROPERTY RIGHTS IN EU AND ITS NEIGHBORHOOD
UIPI filed a petition to the European Parliament concerning the protection of property rights in the EU and it's neighborhood and more specifically the lack of restitution of real estate property confiscated by the former communist regimes in many european countries, to the truthful owners. The petiiton was filed and presented in collaboration with EP Vice President Edward McMillan-Scott, on behalf of UIPI and the Serbian associations for property restitution, with the following text. The petition will be examined by the Petitions Committee of EP, and until then, all additional material and evidence is welcome to be added in the file.
"The question of property rights must be high on the agenda for any administration including EU member states, accession countries, candidate countries and those countries in the EU's Neighbourhood." Mr Edward McMillan-Scott (Yorkshire&Humber Cons/UK) told a meeting in Brussels today (May 4, see center of photo). Serbia maybe the worst case, as it has no restitution law or reliable framework for buyers, but it reflects problems which are to be found elsewhere. While the EU currently has no specific responsibility for property rights, it is an issue in our third country agreements and they are embraced by the Charter of Fundamental Rights. Common sense argues that the EU should encourage best practice in property transactions - usually the largest investment people hold or buy."
McMillan-Scott, Vice-President of the European Parliament, was rapporteur for the Petitions Committee of the European Parliament in 1988-1989 on trans-frontier property problems. He has been examining a range of issues including restitution in ex-Communist countries, the rights of property owners in transitional countries and would like to see a stronger EU approach in this field as the EU enlarges its influence, especially in the holiday property market.
TEXT OF THE PETITION TO THE EUROPEAN PARLIAMENT
"The need for property restitution and the protection of property rights in the EU and its Neighbourhood".
The petitioners assert the failure of the EU to uphold rights concerning private property as real estate, legitimately acquired and illegitimately removed, as well as the security of future transactions in the EU, accession, candidate and Neighbourhood countries as defined, for the region as a whole in the Commission Communication ?Wider Europe - Neighbourhood: A New Framework for Relations with our Eastern and Southern neighbours? 11 March 2003 [COM (2003) 104]:
?A functioning legal system, implemented by strong regulatory authorities and effective and independent judiciaries equipped with the powers to protect property rights are also required to maximise economic activity and production, and accelerate economic growth.?
and in the case of Serbia:
Council Decision of 14 June 2004 (2004/520/EC)
"Adopt/implement legislation on property restitution", and Council Decision of 9 November 2005 [COM (2005) 558]:
?Adopt adequate legislation on the restitution of property and ensure its full implementation, notably by addressing the issue of (state-owned) urban property?, moreover, in the Charter of Fundamental Rights (Article 17.1):"Right to property
Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest."
JUSTIFICATION - European Parliament - action needed to ensure effective protection of Property Rights in Candidate countries
Property rights represent a sensitive issue in most of the countries in Central and Eastern Europe as well as in the Western Balkans and beyond, for example in Turkey and North Africa. During negotiations for the fifth EU enlargement, defence of property rights was perceived as intrinsic to the respect of the political criteria for EU membership, and the European Commission constantly encouraged candidates to make progress for example in the repossession/restitution process. However, considering the complexity of the issue it did not look at the restitution of confiscated properties as a condition for accession, but rather focused on the need for candidate states to create legal frameworks complying with the acquis.
The slowness of repossession of the confiscated properties in some formerly totalitarian but now supposedly democratic states in the Western Balkans are mainly due to extremely lengthy legislative processes, as well as to the lack of real political will in implementing clear and transparent restitution legislation and regulations, prompting many citizens from the EU, the accession candidate and neighbourhood countries, to complain about the impossibility of regaining control over their formerly confiscated / nationalized properties and thus effectively exercise their legitimate property rights.
As the EU has yet to offer any means of redress, the European Court of Human Rights has been the most likely forum for appeal for citizens expressing dissatisfaction with national courts? decisions or with public authorities handling of their cases. However, in the recent Blecic case, the Court appeared reluctant to act.
The problems encountered in the new EU Member States and acceding countries from Eastern and Central Europe are likely to replicate in the Western Balkan countries: moreover they are significantly worsened by the conflicts that troubled former Yugoslavia during the 1990s.
In the case of Serbia, instead of property restitution at all levels, property transfer from the State level to politically controlled municipalities has been proposed in the name of decentralization. The real reason however is the authorities? determination to further complicate and delay the restitution process in favor of the individual citizens, which could endanger some of the vested interests dating back to the Milosevic regime, which are still present in the country.
Restitution of the Church properties is being considered too. Both cases are confirming that almost 90% of the confiscated properties in Serbia could easily be restituted in kind, without any financial costs, by simply enacting the appropriate law (ex lege).
These examples plainly demonstrate that there is currently no political will on the part of the Serbian authorities to enact a general law on restitution.
Following the ?The Thessaloniki agenda for the Western Balkans: moving towards European integration?, adopted by the General Affairs and External Relations Council in June 2003, the Stabilisation and Association process was strengthened by introducing new instruments to support reform and European integration efforts, including European Partnerships. This agenda was also endorsed by the European Council and by the countries of the Western Balkans.
On 3 October 2005, the Member States started negotiations with Croatia on its accession to the European Union. The Former Yugoslav Republic of Macedonia is a EU candidate country. Stabilisation and Association Agreements are being negotiated with Serbia and Montenegro and Bosnia and Herzegovina and such negotiations are nearing conclusion with Albania, although negotiations with Serbia were suspended on 3 May 2006.
The issue of property rights and certainty of property ownership remain intrinsic to any efforts to consolidate democracy and build a functional market economy as it constitutes a strong incentive for investments and economic development. In addition, we should uphold the rights of citizens of the Member States, who tend to anticipate enlargement or association by buying holiday homes.
Individual European Partnership Agreements concluded with the Western Balkan countries underline the importance of proper enforcement of property rights for both political and economic stability. The poor functioning of the legal system in protecting property rights and contracts places a significant burden on business development. Moreover, the business climate is adversely affected by weak judicial systems, arbitrary and discretionary decisions. Thus, an enforceable legal system, including in respect to property rights is a requirement for the establishment and good functioning of a market economy. Administrative obstacles such as land titles or access to land, or the length of registering property (in 2004, in Bosnia and Herzegovina, it took 331 days) are seen as persistent challenges to market entry and competitiveness.
In broad terms, the EU stipulates the following:
complete the property repossession process;
complete the process of refugee return, including all cases of repossession, reconstruction and housing care for former occupancy/tenancy rights holder, and further enhance regional cooperation for accelerating the process of refugee return;
progress on drawing or enforcing, without any delay, new legislation on property rights;
make headway in reducing the case backlog in courts.
make progress in rationalising the organisation of courts including the development of modern information technology systems.
take measures to ensure proper and full execution of court rulings
Given that each country?s progress towards European integration, taking account of the evolution of the acquis, depends on its efforts to comply with the Copenhagen criteria and the conditionality of the Stabilisation and Association process? (June 2005 European Council Conclusions);
? developing the Western Balkan countries? administrative and judicial capacity while ensuring early alignment with Community legislation remains of paramount importance (Commission Communication ?The Western Balkans on the Road to the EU: consolidating stability and raising prosperity? - Brussels, 27.01.2006);
? the economic and social agenda and reforms for approaching European standards are now particularly important (Commission Communication ?The Western Balkans on the Road to the EU: consolidating stability and raising prosperity? - Brussels, 27.01.2006) ;
? Respect of property rights, including those related to the restitution of confiscated property have to be addressed;
? The implementation of legal mechanisms, enabling full respect of property rights and emphasising the implementation and / or enforcement of legal frameworks related to the Restitution of confiscated and nationalised properties carried out by totalitarian regimes, have to be addressed
? Proper and effective measures should be taken both at legal and administrative level, so that within the EU future Member states, EU citizens be able to fully and equally benefit their rights and any discrimination on grounds of nationality be prohibited (as stipulated by article 12 EC Treaty);
? similar to EU Member states, national authorities in future Member states should ?so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals ... the protection of persons and the enjoyment and protection of rights under the same conditions as those accorded by each State to its own nationals? (Article 293 EC Treaty).
Considering the different competencies that each EU institutions have in respect to enlargement, they need to keep a close eye on progress in this area and take immediate action to address deadlocks due to lack of resources or political will. Progress on these key priorities should, therefore, be subject to close monitoring by both the European Commission (through its Annual Progress Reports on each country) and the European Parliament (including through joint parliamentary committees and other bilateral meetings with countries concerned).
For the Petitioners
The President of Union Internationale de la Propriete immobiliere (UIPI)
Stratos J. Paradias
Lawyer, Athens, Greece
The Balkan Conference for Property Restitution,
Thessaloniki, May 2004