Factum Valet Quod Fieri Non Debuit: The Legal Quagmire of Church Property Restitution in Romania

https://doi.org/10.63189/CUXF7606

1. Contextualising the issue

Factum valet quod fieri non debuit – an old Roman maxim meaning that what ought not to have been done nevertheless becomes valid once done. In essence, it privileges the final state of affairs over the procedure that produced it, legally sanctifying a reality that supersedes the rule that was violated. Although in jurisprudence this maxim is mostly invoked in private-law contexts, it also aptly captures the long-term effects of Soviet-style nationalisations in East-Central Europe.

In Romania, most church properties were appropriated by the dictatorship within just a few years, beginning mainly in 1948. Through these measures, the regime sought to reduce—ultimately to eliminate—the social role of churches, so that the official ideology could replace religion in public and private life. While repression targeted all denominations, the greatest losses were borne by minority churches. In the Romania of that era, religious and ethnic identities largely overlapped, and these churches had historically maintained a substantial share of the social, healthcare, and educational institutions serving minority communities. Their dispossession, therefore, had both religious and ethnocultural ramifications.

After the fall of the dictatorship, Romania was initially reluctant to adopt rules on the re-privatisation of communal properties. However, the country’s aspiration to integrate into the broader European community—particularly through accession to the Council of Europe and later the European Union—gradually paved the way for the adoption of restitution legislation.

With regard to denominational properties, the evolution of legislation can be divided into three distinct phases,^[1] each reflecting a markedly different approach to restitution.

(i) 1997–1999: The Government adopted a series of emergency ordinances^[2] that returned a limited number of specifically listed properties to certain churches, focusing on assets of particular significance for those denominations.^[3]

(ii) 1999–2005: A more general framework for restitution was gradually developed. This happened through the adoption of an emergency ordinance^[4] still giving back particular properties, but which was suitable for augmentation by simple government decisions and through the adoption of another emergency ordinance^[5] applicable already to all denominations.

(iii) 2005 onwards: The full restitution regime was finally operationalised. For immovable properties located within municipal boundaries, this took the form of Government Emergency Ordinance No. 94/2000 as amended and republished in 2005^[6] (hereafter: GEO No. 94/2000); for outlots, the general restitution law applied. This body of legislation—still in force today—was among the most favourable to churches in the region. It adopted restitutio in integrum as the governing principle, meaning that everything capable of being returned should be returned, with the possibility of monetary compensation in some cases.

As the Constitutional Court observed in its Decision No. 618/2016,^[7] the legislator’s purpose was to ensure the material means necessary for the spiritual, cultural, and social activities of religious denominations (Reasoning 29). To facilitate this restitution process, the amended GEO No. 94/2000 established a relative presumption in favour of churches concerning their former properties. According to Article 4(4), in the absence of evidence to the contrary, the existence and—where relevant—the scope of ownership is presumed to be that recognised in the act through which the abusive takeover was ordered or enforced. Thus, the church named in a given nationalisation act, and the assets attributed to it in that act, should normally be the beneficiary of restitution.

This restitution framework functioned slowly but relatively effectively until 2012. By that point, approximately half of the claims submitted by churches for properties within locality boundaries had been resolved, largely in their favour. After 2012, however, the attitude toward restitution changed dramatically—even though the statutory legislation itself was not amended. Restitution decisions became increasingly rare, with nearly all outstanding claims rejected by the Special Restitution Commission responsible for issuing restitution decisions. In parallel, the courts became inundated with lawsuits seeking to overturn restitution decisions already granted, and in some cases, even re-nationalisations occurred.^[8] As a result, the restitution of church properties remains an ongoing issue in Romania to this day.

2. Present situation

In this context, the end of 2025 saw the submission to the Romanian Parliament of a bill proposing amendments to GEO No. 94/2000.^[9] The bill aims to revitalise the restitution process, although it clearly appears to have been prompted by the recent Decision No. 21/2023 of the High Court of Cassation and Justice.^[10] That ruling essentially rendered ineffective a relative presumption in favour of the churches, which stood as the philosophical basis for these processes.

Decision No. 21/2023 was delivered by the High Court’s Panel for the Appeal in the Interest of the Law, a formation convened specifically to resolve questions of law that have been interpreted inconsistently in the judicial practice. Its purpose is to ensure the uniform application of the law, and therefore, its rulings are binding on all courts from the date of their publication. Consequently, before turning to the broader legal implications of this particular decision, it is necessary to outline its scope and findings.

The High Court was asked to clarify the interpretation of GEO No. 94/2000 in relation to other acts due to a divergent case law that had emerged over the past decade, particularly in disputes challenging positive restitution decisions issued by the Special Restitution Commission in favour of the Reformed (Calvinist) Church in Romania, a predominantly Hungarian denomination. At the core of the divergence lay the question of whether, at the moment of nationalisation, certain historic institutions—mainly schools—listed in 19th-century land registers (compiled largely during or prior to the Austro-Hungarian compromise of 1867) under their own institutional names, with the church appearing only as an epithet [e.g. reformed according to the Gospel (aka. Calvinist) Székely Mikó College],^[11] should be regarded as separate legal persons (or belonging to someone other than the church) or instead as constituent parts of the church. The issue arises even though the nationalisation decrees explicitly listed the church as the entity from whom the properties were taken.

The question is quintessential, as the GEO No. 94/2000 allows restitution exclusively to religious denominations, not to other legal persons (including associations or foundations established by the churches), as also confirmed by the aforementioned decision of the Constitutional Court (Reasoning 29). The divergent case law may be summarised as follows:

First line of case law:

Several courts held that entries in the land register must be corroborated with the nationalisation decree and other evidence of ownership. They emphasised that the schools in question—which may no longer exist today—functioned as integral parts of the Reformed Church and that the Reformed Diocese of Transylvania therefore has legal standing to seek restitution of the property previously belonging to them. This interpretation was supported by the church’s internal canonical regulations from 1904 and by pre-1918 Hungarian legislation from 1911 on the needlessness of correcting these registers, as well as the post-1918 Romanian legislation not granting a legal personhood to these institutions after the church run educational institutions were denominated as parts of the private education sector. These courts also stressed that denominational schools were materially supported and supervised by ecclesiastical structures, thereby justifying reliance on the statutory presumption that the former owner was the entity named in the nationalisation decree (Reasoning 60).

Second line of case law:

Other courts took a more formalistic approach, holding that ownership can be proven only through documents that directly attest to ownership. In the real property law system, a right registered in favour of a person in the official records is presumed to exist in favour of that person, and entries can be challenged only through a request for rectification. These courts noted that the properties were registered in the name of the school/college based on purchase deeds listing the school—not the Reformed Diocese—as the acquirer. They held that neither financial support nor ecclesiastical supervision establishes legal ownership, and that references in the nationalisation decree to “the Reformed school … of the Reformed Church” do not constitute proof that the church was the actual former owner (Reasoning 59).

When deciding how these interpretations should be unified, the High Court adopted the latter approach. It held that entries in the land register conclusively indicate the existence and holder of ownership rights (Reasoning 75), and that in restitution claims under GEO No. 94/2000, a claimant cannot seek to prove ownership in the patrimony of a person other than the registered owner (Reasoning 76).

The Court did concede that, in theory, churches may attempt to demonstrate that the registered owner (e.g., a school) was not a separate legal person but merely an institutional component of the denomination without legal personality, and that registration was simply a way of identifying a specific asset pool within the unified patrimony of the denomination. In such cases, the aim would not be to contradict the land register, but to corroborate it by showing a part–whole relationship between the registered institution and the claimant religious body (Reasoning 77).

However, the Court introduced a major shift: in future restitution claims, churches must produce direct evidencedemonstrating that institutions appearing in the land register under their own names were not independent entities but belonged to the church.^[12] Direct evidence—such as founding acts, statutes, documents underlying the land registration, or records of how the property first entered the institution’s patrimony—is now required. Indirect or circumstantial evidence is admissible only subsidiarily and is considered inherently unreliable because it does not directly establish the alleged legal relationship (Reasoning 79–82).

Although the present author considers the earlier, more contextual line of case law to be more faithful to historical legal realities, he does not intend to argue in favour of that approach. Instead, attention must be drawn to several broader legal issues created by the High Court’s new approach—issues that appear inconsistent with the spirit and purpose of the original restitution legislation.

First, by endorsing an interpretation that works to the detriment of churches, the High Court effectively nullified the statutory relative presumption created in their favour. That presumption was designed precisely to benefit churches in cases where dispossession acts expressly named them as owners. In displacing this presumption and shifting the burden of proof onto churches, the Court has also—implicitly—conferred retroactive effect on modern land registration rules that did not exist when many of the schools were established.

Second, the requirement of direct documentary evidence does not reflect the legal realities of the historical periods concerned. More than a century ago, the legal system did not require founding charters or formal incorporation procedures when a church established and operated a school. The High Court’s framework, therefore, demands evidence that, in many cases, could never have existed.

Third, the High Court applies modern concepts of legal personality anachronistically. As highlighted before, many church-founded institutions did not possess the formal attributes that current law would require for their creation and functioning. Interpreting their historical land register entries through contemporary categories, misaligned with the realities of the period, basically hinders the restitutory purpose of the legislation.

In response to these concerns, the newly proposed amendments to the restitution legislation seek to reaffirm more clearly the original guiding principles of the restitution process. The draft law aims to restore the legislation to its initial purpose: ensuring the material means necessary for the spiritual, cultural, and social activity of religious denominations. To this end, it (i) clarifies that the former owners shall be deemed to be the churches expressly identified as such in the nationalisation acts, and (ii) designates those acts as direct evidence, with full probative force, of ownership—both in terms of title and in terms of the extent of the property—to be restored to the religious denomination. If adopted in the proposed form, its provisions would allow for the reintroduction of claims which were rejected previously based on the above-discussed reasoning.

3. Concluding thoughts

Reversing an unlawful historical process through legal means is always a difficult task. The challenge only grows as more time passes, obscuring the evidentiary clarity required for legal determination. This is true even in areas such as contractual or tort liability, where mechanisms for redress are integral to any modern legal system. Property restitution, however, occupies a distinct and more complex category, being a particular way of acquisition of property unnamed expressly by regular civil codes. Its implementation—or abandonment—is a matter of political will, because the underlying wrongs occurred so long ago that they have produced, in the present, legally valid and settled situations.

In determining the scope of restitution, two fundamental legal principles inevitably collide. Restitutio in integrum, conceived as a form of transitional justice, seeks to undo past wrongdoing by restoring property as fully as possible. By contrast, the principle tempus regit actum, which underlies legal continuity and legal certainty, demands respect for the legal framework governing actions at the time they occurred.^[13] In Romania, because the restitution process began late, the legislator opted to place greater weight on restitutio in integrum, aiming to return to the churches all property that could still feasibly be restored. This approach was also motivated by the state’s desire to allow churches to rebuild their own economic foundations, thus enabling them to sustain themselves without ongoing reliance on the state budget. The free exercise of religion—guaranteed by the constitutions of all European countries—presupposes the existence of a material foundation for religious communities, a point also hinted at indirectly in the case law of the European Court of Human Rights.^[14] Romania sought to ensure this foundation primarily through the restitution of previously nationalised church assets. Yet restitution is par excellence a politically hyper-contingent process. As the developments since 2012 have shown, political will can dissipate swiftly, leaving the process half-completed.

The nationalisation of most church properties took place within a span of three years; the restitution process has now lasted nearly two decades, with no definitive conclusion in sight. From a theological and political-legal perspective, Soviet-type nationalisation served as a juridical instrument for constructing a totalitarian regime, whereas reprivatisation, in turn, functions as a legal mechanism for dismantling such a system.^[15] The two processes are, as some scholars have observed, fundamentally antithetical.

For this reason, the author maintains that Romania’s post-totalitarian transition cannot be considered complete until the reprivatisation process is brought to an end—completed in full accordance with, and in the spirit of, the legislation originally adopted to accomplish it.

^[1] Markó, A. (2021) Az egyházi ingatlan-visszaszolgáltatás gyakorlata Romániában 1997–2016. Kolozsvár: Forum Iuris, pp. 26–58.

^[2] A government emergency ordinance is an administrative act issued by the government in cases of emergency, having the power of a statute adopted by the parliament from the moment of its publication.

^[3] For example: Government Emergency Ordinance No. 21/1997. Published in the Official Gazette No. 97 from 21 May 1997; Government Emergency Ordinance No. 13/1998. Published in the Official Gazette No. 255 from 8 July 1998; Government Emergency Ordinance No. 112/1998. Published in the Official Gazette No. 324 from 29 August 1998.

^[4] Government Emergency Ordinance No. 83/1999. Published in the Official Gazette No. 266 from 10 June 1999.

^[5] Government Emergency Ordinance No. 94/2000. Published in the Official Gazette No. 308 from 4 July 2000.

^[6] Published in the Official Gazette No. 797 from 1 September 2005.

^[7] Published in the Official Gazette No. 72 from 27 November 2016.

^[8] See for example Veress, E. (2020) ‘Vázlatos megjegyzések a romániai egyházi ingatlanrendezésről, különös tekintettel a Székely Mikó Kollégium ügyére’, Pro Minoritate, 2020/2, pp. 76–94.

^[9] Number of the bill: BP527/2025. To see the proposed amendment and the legislative phase it can be currently found in, visit the webpage of the Chamber of Deputies. Available at: https://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?idp=22693 (Accessed: 1 December 2025).

^[10] Published in the Official Gazette No. 1160 from 21 December 2023.

^[11] Regarding this particular example, in the Hungarian real estate registry of 1900, the school appears literally as the property of “Ev. Ref. Székely Mikó Kollégium”, which is the abbreviation of evangélium szerint reformált Székely Mikó Kollégium.

^[12] János Székely—attorney-at-law and university lecturer—argues that the High Court did not merely ensure the uniform interpretation of the law, but effectively instructed lower courts on how to evaluate evidence in individual cases. He further notes that this raises constitutional concerns, as the High Court appears to have exceeded its constitutionally defined authority in the appeal in the interest of the law: rather than limiting itself to interpreting legal norms, it has also prescribed how certain categories of evidence must be assessed by the courts. Makkay, J. (2024) ‘Légből kapott rendelkezéssel nehezíti meg a történelmi magyar egyházak ingatlanjainak restitúcióját a legfelsőbb bíróság’, Krónika, 11 January 2024 [Online]. Available at: https://kronika.ro/erdelyi-hirek/legbolkapott-rendelkezessel-nehezitik-meg-a-tortenelmi-magyar-egyhazak-ingatlanjainak-restituciojat-a-romaniai-birosagokon (Accessed: 1 December 2025).

^[13] Veress, E. (2025) ‘Restitution of Property Nationalised by the Soviet-style Dictatorships: An Assessment on the Role of the European Court of Human Rights’ in: Béres, N., Hrecska-Kovács, R. (eds.) The ECHR at 70: The Central European Narrative. Miskolc–Budapest: Central European Academic Publishing, pp. 475–493, 479–480.

^[14] Case of Metropolitan Church of Bessarabia and Others v. Moldova. ap. no. 45701/99, 13 December 2001; Case of Jehovah’s Witnesses of Moscow v. Russia, ap. no. 302/02, 10 June 2010; Case of Arnavutkoy Greek Orthodox Taksiarhis Church Foundation v. Turkey, ap. no. 27269/09, 15 November 2022.

^[15] Veress, E. (2022) ‘Nationalization, Collectivization, Reprivatization, and Privatization in East Central Europe: Arguments for a General Theory’ in Sáry, P. (ed.) Lectures on East Central European Legal History. Miskolc–Budapest: Central European Academic Publishing, pp. 241–269, 260.