Fondul Proprietatea

Fondul Proprietatea (Property Fund in English) is a joint-stock company established in Romania and is intended to become entirely private and independent from the Romanian state. The company's purpose and its operations are governed by special legislation. Shareholders are limited to those dispossessed owners of their property by the Romanian state during the Communist regime.

History
Romania is a country of the former Eastern Soviet bloc where a very large number of properties including factories, enterprises, houses, apartments, buildings, churches, and lands were confiscated during the Communist Romania era. The state would appropriate illegally, using abusive decrees, the most important being decree nr 92 of 1950. By means of coercion, 150,000 out of more than 400,000 buildings have been destroyed. In 1995, under the presidency of Ion Iliescu, a law allowed tenants to buy from the Romanian State, at a very low cost. Real estates built before 1945 did not belong to the State and were confiscated, thus preventing the true owners to recover their property. Figures between 150,000–250,000 concerned property owners—only for real estate—are frequently used by associations or newspapers, but no verifiable official statistic is available. The complex legal situation has led to an attempt to compensate the former owners, victims of communism, who were denied a second time for the restitution of their property. Fondul Proprietatea aimed initially by providing financial resources.

Created on November 24, 2005, by law 247/2005 in Romania, Fondul Proprietatea is a fund that collects a part of the debts that other countries owe to Romania. It also contains shares of certain state companies.

The shares distribution constitutes the means to repair the injury suffered by persons and families that have been wrongfully dispossessed of their properties during the communist totalitarian period (1945–1989).

Company, capital, and corporate purpose
S.C. Fondul “Proprietatea” S.A. was established to assure the financial resources necessary to compensate the persons abusively expropriated. The compensation is made in shares, representing the actual value of the real estate which are not given back in kind. Following the fulfillment of some strict law determined stages, the titleholders of the rights of compensation will become shareholders of Fondul Proprietatea.

It is a private fund that does not get any finance from the State budget. However, until very recently, its management and board were chosen by the Government of Romania. The company's purpose is to create profits for its shareholders, achieved by judicial administration of the assets.

The nominal value of shares issued by Fondul Proprietatea is 1 RON. The unique initial shareholder is the Romanian State.

Management
Until the appointment of a selected administration, the fund has been managed provisionally by the Ministry of Public Finance through the Board of Supervisors. After selecting through an international public tender, a management company will take over the powers of the administrator of the Fund property. Following a tender selection process, a Selection Commission has recently designated Franklin Templeton Investment Management Ltd. the manager position on June 9, 2009.

Structure of the shareholders

 * On 31 August 2008:

Portfolio structure
By the end of December 2008, the portfolio total value was evaluated around 16,498,879,195 RON (5,497,793,800 USD or 3,911,350,421 €). In June 2009, the available information regarding 90% of the portfolio value is as follows:


 * Stock-Exchange (Bucharest) listed Companies:


 * Unlisted companies:

Compensation scheme
The shares issued by Fondul Proprietatea will be transferred, free of charge, to the titleholders of compensation issued on the date of the Fund establishment, to their subsequent holders, or to the persons compensated by the decisions issued after the establishment of the fund. The number of the shares transferred will be set by reference to the value of the compensation securities held.

For this purpose, Fondul Proprietatea will initiate the legal procedure to admit the shares for transaction on the market operated by Bucharest Stock Exchange. By the capitalization of the shares—either by their sale or by receiving annual dividends—resulted from the activity developed by Fondul Proprietatea. The effective compensation will be accomplished for the former owners of the nationalized real estates, which could not be given back in kind.

Criticism
The fund has been experiencing serious management difficulties, delays, and scandals - In Ziarul financiar.ro on 30/03/2009 - Summary: the profit is divided by two and the salaries increase. link to the article - In FrontNews.ro on 12/11/2008 - Summary: the excessive and undeclared executives salaries raises a scandal at Fondul Proprietatea. link to the article - In Evenimentul Zilei on 17/09/2008 - Summary: the performance tumbles down but wages continually inflate. link to the article - In Capital.ro on 17/09/2008 - Summary: the salaries budget of the fund has tripled in 3 years. link to the article - In Hotnews.ro on 7 February 2008 - Summary: the managing director has a 17.000 euros salary and a 120.000 euros prime for dismissal in secret clauses that should have been made public through the ANI (National Integrity Agency) obligations. link to the article - In Cotidianul.ro on 18/06/2008 - Summary: nepotism and huge salaries for the head of the fund. The director, godmother of the Interior minister, gets 17.000 euros per month. link to the article since its creation. This fund is also widely disputed by the beneficiaries and all owner's associations, - In Curierul Național on 10/06/2005 - Summary: Fundul Proprietatea, the formula proposed by the Government to pay compensation to former owners of nationalized properties that can not be returned in kind, is strongly contested by potential beneficiaries, the solution was met with skepticism even by the Ministry of Finance. link to the article - In Ziarul Financiar on 10 March 2006 - Summary: Owners do not trust either the government or Fondul Proprietatea. link to the article - In Gândul on 10 September 2006 - Summary: Dissatisfaction and mistrust are the feelings of the former abusively dispossessed owners that should receive shares of the Fondul Proprietatea instead of confiscated homes. Discontent, because they do not know if the assessment will be correct and have no certainty that he will recover quickly and easily the money. Distrust, because they are not familiar with the mechanism of capital market. link to the article - In Financiarul.ro on 12/12/2008 - Summary: there is no law to compensate former owners, the only form of compensation is provided by the Property Fund, but, at present, it is not functional, said Friday (December 12, 2008) Maria Teodoru, President of the Improperly Deprived by the State Owners Association (APDAS - Asociatiei Proprietarilor Deposedati Abuziv de Stat) link to the article considering it is not a real compensation scheme since the shares cannot be properly sold on the market and it is insufficient in size. It has been also criticized by the press, the civil society, and political parties in Romania. It appears that the fund is still not in a position to compensate anyone, mainly because it cannot be floated in the financial market and for the weak amount of money that the Romanian State makes available for the fund. - In BloomBiz.ro on 04/09/2009 - Summary: Romanian state does not pay its own participation in the fund which is obliged to enforce it to pay. link to the article - In Ziare.com on 03/09/2009 - Summary: the fund is suing the Romanian State for not fulfilling its legal duty : paying its share of the fund social capital. link to the article - In Curierul Național on 25/03/2009 - Summary: The company (Fondul Proprietatea) wants to get back 160 millions euros following the privatisation of the BCR (Banca Comercială Română). Until now, negotiation with the Minister of Economy have failed. The company prosecuted the Minister of Economy and Finance in 2008. link to the article - In Evenimentul Zilei on 03/03/3009 - Title: "The Romanian Government will give compensation when the holy cows come home" - Summary: the money allocated (from Fundul Proprietatea) during 2009-2012 period will not cover the needs for half this year in order to pay the former owners. It is very hard to communicate and to get information from the Authority for Property Restitution (ANRP) in charge of the compensation scheme. link to the article In 2009, according to many newspapers and commentators, the image of the fund and of the State of Romania has been seriously tarnished by the long series of issues and failures. - In Romania Libera on 24/09/2009 - Summary: Fundul Proprietatea is in a stalemate since its creation. The problem is so serious, that it has become internationalized. The negative effects of this process have contaminated the European Court of Human Rights in Strasbourg, where property processes against Romania multiply from year to year. Bucharest keep the same pace and does not change the legislation, despite the fact that the court asks constantly to review bad legislation and to implement judicial decisions. link to the article - In The Romanian Digest in June 2009; Hotnews.ro on 10/06/2009 and Romania News Watch on 03/06/2009 - Summary: four years after the creation of the Property Fund (“Fondul Proprietatea” in Romanian) as a means of awarding restitution to former owners of properties confiscated by the Romanian state where in-kind restitution is no longer possible, Fondul Proprietatea still does not represent an effective mechanism in awarding compensation to the victims. This is a stain on the honor of the Romanian state. The Romanian Digest (in English).- Hotnews.ro Romania News Watch  (in English)

The fund has been liquid for the victims only once, for a very limited amount: 500,000 Lei (around 166,500 USD or 118,778.80 Euros) for each owner, whatever the extent of injury, and for a very limited time (within 6 months from 1 October 2007 ). It allows only rarely the compensation of the deprivation of property. Many of the former owners die before receiving any compensation.

The European Court of Human Rights (or ECHR) has repeatedly condemned Jurisprudence about Proprietatea: (On February 9th of 2009, there are 52 rulings published since December 2008) : - ''In the cases All judgments are in extenso in French, the official language of the ECHR. Except for very few ones, no available English version exist for the selected decisions.'' - - Evolceanu vs. Romania (application n°37522/05), ruling of 09/02/2010 link to the judgment

- Mărăcineanu c. Romania (application n°35591/03), ruling of 9/02/2010 link to the judgment

- Veniamin vs. Romania (requête n°19438/05), ruling of 26/01/2010 link to the judgment (English version)

- Bădoi vs. Romania (application n°22815/07), ruling of 26/01/2010 link to the judgment

- Nita vs. Romania (application n°24202/07), ruling of 26/01/2010 link to the judgment

- Loewenton vs. Romania (requête n°111/07), ruling of 26/01/2010 link to the judgment

- Caragheorghe and others vs. Romania (application n°38742/04), ruling of 19/01/2010 link to the judgment

- Bistrițeanu and Popovici vs. Romania (application n°5855/05), ruling of 19/01/2010 link to the judgment

- Varodi vs. Roumanie (requête n°8704/06), ruling of 19/01/2010 link to the judgment

- Stanca Ciobanu vs. Romania (application n°38800/02), ruling of 19/01/2010 link to the judgment

- Andreesca Murăreț et Autres vs. Romania (application n°4867/04), ruling of 19/01/2010 link to the judgment

- Corbu vs. Romania (application n°12393/05), ruling of 19/01/2010 link to the judgment

- Rogojină vs. Romania (application n°6235/04), ruling of 19/01/2010 link to the judgment

- Alexandra Maria Popescu vs. Romania (application n°9684/04), ruling of 12/01/2010 link to the judgment

- Emilian Ștefănescu vs. Romania (application n°35018/03), ruling of 12/01/2010 link to the judgment

- Karl Gottfried Schwarz and Helmut Martin Schwarz vs. Romania (application n°39740/03), ruling of 12/01/2010 link to the judgment

- Seceleanu et autres c. Romania (application n°2915/02), ruling of 10/01/2010 link to the judgment (English version)

- Gherghiceanu and others (Costache and Rusu) vs. Romania (applications n°21227/03, 18377/05 and 18730/05), ruling of 08/12/2009 link to the judgment

- Cristian and Mihai Dumitrescu vs. Romania (application n°29231/06), ruling of 01/12/2009 link to the judgment

- Demetrescu vs. Romania (application n°5046/02), ruling of 10/11/2009 link to the judgment

- Vidrascu vs. Romania (application n°11138/06), ruling of 27/10/2009 link to the judgment

- Dermendyin vs. Romania (application n°17754/06), ruling of 27/10/2009 link to the judgment

- Bohenschuh vs. Romania (application n°14427/05), ruling of 27/10/2009 link to the judgment

- Mihai and Radu Rădulescu vs. Romania (application n°14884/03), ruling of 20/10/2009 link to the judgment

- Diver vs. Romania (application n° 35510/06), ruling of 13/10/2009 link to the judgment

- Anea & Nitescu vs. Romania (application n° 45924/06), ruling of 13/10/2009 link to the judgment

- Schuster vs. Romania (applications n° 36977/03 and 37375/03), ruling of 13/10/2009 link to the judgment

- Stürner vs. Romania (application n° 17859/04), ruling of 13/10/2009 link to the judgment

- Gătitu vs. Romania(application n° 16535/04), ruling of 06/10/2009 link to the judgment

- Simionescu-Râmniceanu (n°2) vs. Romania (application n° 43953/02), ruling of 22/09/2009 link to the judgment

- Tamir and Others vs. Romania, (application nr. 42194/05), ruling of 15/09/2009 link to the judgment

- Dumitraș vs. Romania (application n° 17979/05), ruling of 28/07/2009 link to the judgment

- Ștefănescu & others vs. Romania (application n° 34741/07), ruling of 21/07/2009 link to the judgment

- Simionescu-Râmniceanu vs. Roumanie (application no 16272/03), ruling of 21/07/2009 link to the judgment

- Cernitu vs. Romania (application n° 11474/04), ruling of 21/07/2009 link to the judgment

- Naghi vs. Romania (application n° 31139/03), ruling of 21/07/2009 link to the judgment

- David vs. Romania (application n° 34247/06), ruling of 16/07/2009 link to the judgment

- Aurel Popa vs. Romania (applications n° 21318/02), ruling of 16/07/2009 link to the judgment

- Chamber of Commerce, Industry and Agriculture of Timișoara (n°2) vs. Romania (applications n° 23520/05, 23524/05, 23544/05, 23550/05, 26288/05, 27175/05, 27176/05, 27177/05, 27178/05, 27179/05, 27180/05, 27181/05,27182/05), ruling of 16/07/2009 link to the judgment

- Chamber of Commerce, Industry and Agriculture of Timișoara vs. Romania (applications n° 13248/05, 13321/05, 23462/05, 23471/05, 23475/05, 23482/05, 23490/05, 23493/05, 23496/05, 23501/05, 23504/05, 23517/05), ruling of 16/07/2009 link to the judgment

- Becskei vs. Romania (application n° 8266/05), ruling of 07/07/2009 link to the judgment

- Roman vs. Romania (application n° 30453/04), ruling of 07/07/2009 link to the judgment

- Turus vs. Romania (application n° 31566/03), ruling of 07/07/2009 link to the judgment

- Athanasiu Marshall vs. Romania (application n° 21305/05), ruling of 23/06/2009 link to the judgment

- Czaran and Grofcsik vs. Romania (application n° 11388/06), ruling of 02/06/2009, link to the judgment

- Glatz and others vs. Romania (application n° 15269/03), ruling of 02/06/2009, link to the judgment

- Elias vs. Romania (application n° 32800/02), ruling of 12/05/2009, link to the judgment

- Stanciu vs. Romania (application n° 3530/03), ruling of 10/03/2009, link to the judgment

- Denes and others vs. Romania (application n° 25862/03), ruling of 03/03/2009, link to the judgment

- Katz vs. Romania (application n° 29739/03), ruling of 20/01/2009, link to the judgment

- Faimblat vs. Romania (application n° 23066/02), ruling of 13/01/2009, link to the judgment

- Viașu vs. Romania (application n° 75951/01), ruling of 09/12/2008, link to the judgment Romania for its failure to return the real estate, but also to pay for compensation. In November 2009, it is still not considered by the European Court of Human Rights as an acceptable means of compensating the confiscations. According to the Romanian newspaper Ziua, the refusal of Romania to change its legislation in order to make effective the restitution of confiscated properties, or to offer a swift and decent compensation, led the ECHR to threaten Romania with an outright exclusion of the organization (21 May 2009). On 21 October 2009, the newspaper Evenimentul Zilei dedicates a long article of the never ending condemnations of Romania, considered by the ECHR unable to compensate dispossessed owners. Romania has lost more than 100 trials since 2007, and had to pay nearly 18 million euros in damages awarded by the Court to the plaintiffs.

The Council of Europe states that a systemic problem in Romania due to the mechanism of the fund. The Committee of Ministers has regularly highlighted a deficiency regarding the respect of private property right. The Committee emphasizes the lack of compensation following the deprivation of property, which amounts to confirm the ineffectiveness of Fondul Proprietatea. Thus at its last meeting on June 6, 2009, the ministers states on the basis of the 88 cases involving the absence of restitution or compensation for nationalized property, subsequently resold by the State to others: 1. recall that the issues raised in these cases relate to a major systemic problem, particularly related to the absence of restitution or compensation for nationalized property, subsequently resold by the state to others, a problem that must be addressed as quickly as possible to avoid a significant number of new, similar violations; 2. note that the European Court in a number of cases that have recently become final, said, inter alia, that the Romanian authorities should take the necessary legislative measures to prevent the occurrence of situations where two titles related to the same property coexist, and also amend the administrative mechanism established by the laws of repair so that it becomes really coherent, accessible, timely and predictable; 3. invite the Romanian authorities to submit an action plan on measures taken or envisaged to improve the current mechanism of restitution;; in this context they noted with interest that bilateral consultations are envisaged between the authorities involved in the process restitution and the Secretariat; 4. consequently decide to resume consideration of these matters at the latest af their 1st HR meeting in 2010 in the light of the action plan and to provide information on individual measures.

Romania is the only country in the former Eastern bloc to join the European Union, where such a problem concerning the situation of property connected with the collapse of communist regimes remains unresolved. None of the other ex-Soviet bloc countries have raised a real estate issue with such a magnitude at European level.

Given the seriousness of the situation and the inertia of the Romanian state, despite hundreds of convictions of the European Court of Human Rights, the latter launched on 25 February 2010 as a pilot-judgment procedure. The hearing was held 6 September 2010. The ruling is expected in September 2010. It could be accompanied by sanctions against Romania such as the obligation to amend its legislation, or the exclusion of the Court.