Restitutio Interruptus: Minority Churches, Property Rights and Europeanisation in Romania

Abstract The article aims to explain the changing dynamics of property restitution to historical Hungarian churches in Romania. While in the early 2000s most claims by these churches were approved, after 2010 most of their petitions were denied when the courts started questioning these churches’ historical property rights. It is argued here that this jurisprudential shift can be explained by the changing political environment after Romania’s EU accession, when the courts deferred to the prevailing social consensus, reflecting the unpopularity of restitution to minority churches amongst the Romanian public.

era, around one thousand Hungarian-language denominational schools existed, constituting the backbone of the Hungarian school system in Transylvania (Ballai 2016, p. 8).Most of these institutions were nationalised by the communist authorities, significantly weakening the minority's institutional framework. 2After the end of communism, many of these properties were claimed back by the churches based on Romania's generous legislation, which provided for the restitution in kind, allowing for returning the property abusively seized by the communist authorities to its previous owners on its original site.The relevant legal provisions guaranteed 'the restoration of real estate' to 'the communities (organisations, religious cults) of national minorities' in Romania, thus acknowledging the link between these churches and the respective national minorities. 3The Hungarian and German minority churches and Jewish religious communities received similar guarantees of property restitution through various pieces of legislation adopted in the late 1990s and early 2000s.
These churches play a key role in safeguarding minority culture and identity, underpinned by the fact that 94% of Hungarians in Transylvania belong to one of four historical Hungarian churches: 46% to the Reformed (Calvinist) Church, 41% to the Roman Catholic Church, 5% to the Unitarian Church and 1% to the Evangelical Lutheran Church (Kiss et al. 2018, p. 296).Most Roman Catholics and around half of the Evangelical Lutherans in Transylvania are ethnic Hungarians, while most Roman Catholics living outside Transylvania are ethnic Romanians (Pope 1992, pp.158-60).The Archdiocese of Alba Iulia represents the Catholic Church in Transylvania proper, which is one of the five Catholic dioceses in Romania that function under the authority of the metropolitan archdiocese in Bucharest.Roman Catholics in Transylvania, and Unitarians and Reformed Calvinists-who mostly live in Transylvania-are predominantly Hungarian and are, therefore, generally perceived as ethnic Hungarian churches, while the Romanian Orthodox Church and the Greek Catholic Church are regarded as ethnic Romanian denominations.Lutheran churches are either German-, Hungarian-or Slovak-speaking.Ethnicity and religion largely overlap in the case of these churches in Transylvania, which is why the restitution of property rights to historical Hungarian churches is generally regarded as a guarantee of the community's maintenance rights over minority institutions.
In this context, only a few studies (Kuti 2009; Otoiu 2010; Stan 2012) have sought to illuminate the controversy associated with Romanian property restitution, mostly focusing on property restitution to individuals, the Jewish community and the Greek Catholic Church without discussing restitution to other religious minority communities.The cases of the restitution of religious properties are only a subset of the overall set of restitution cases, most of which concern individual property claims.Before the deadline of 2003 set by Law 501/2002 on church restitution, 4 Roman Catholic churches in Transylvania and Reformed churches together submitted more than 2,000 claims, while the Evangelical Lutheran Church of Romania submitted 35 and the Hungarian Unitarian Church, 86 (Ballai 2016, p. 46).
The article aims to break new empirical ground by shedding light on the dynamics and problems concerning property restitution to traditional Hungarian churches by describing the results of in-depth case studies, namely, the restitution of the buildings of four denominational schools owned by the Hungarian-speaking Reformed and Catholic churches before nationalisation.Amongst these four cases, two are examples of successful restitution cases from the early 2000s (one Reformed and one Catholic), and two are more recent failed legal cases (one Reformed and one Catholic).All these cases reached the High Court of Cassation and Justice (HCCJ); thus, studying them together allows for an analysis of jurisprudential changes.Given that legal cases related to restitution to Hungarian churches number in the thousands, each associated with voluminous legal dossiers, conducting a full analysis would be beyond the limits of this study.Instead, the more focused analysis here illuminates some crucial aspects of the changing underlying forces behind the overall process.
While property restitution to the Hungarian minority denominations generally progressed well until the early 2000s, the process slowed significantly and had almost come to a halt by the early 2010s.While early claims by the churches were mostly approved by the Special Restitution Commission (Comisia specială de retrocedare-SRC) and the domestic courts at all levels, after 2010 most of these claims were denied, essentially establishing that properties claimed by these churches constituted public assets.The fundamental aim of this article is to explain how the tide turned on the process of property restitution to minority religious communities.This shift in overall dynamics can be explained by a fundamental change in how the SRC and the courts, including the HCCJ, interpreted the legal status of properties historically owned by traditional minority churches in Transylvania, with more recent decisions conflicting with earlier ones.The ultimate question that emerges here is why the HCCJ modified its interpretation of similar cases over time.Reasons include the changing political environment after Romania became an EU member and the ascendance of the powerful Anti-Corruption Agency (Direcția Națională Anticorupție-DNA), which essentially rendered illegal the hitherto dominant approach of the SRC-recognising the property rights of these churches even though they were not named as owners in land registries predating the communist nationalisation process.
This research suggests that the restitution process in Romania, as in other postcommunist states, was politically contingent, in that restitution commissions and courts subjected considerations of legality to real or assumed expectations of political power holders in the context of minority politics (Rosenberg 1991; Anagnostou & Grozev 2010).The present study explains the specific pattern of how this political contingency manifested in postcommunist Romania.After the carefully forged political agreement about the desirability of property restitution to minority churches, fostered by Romania's EU integration process, evaporated in the mid-2000s,5 the courts fell back on the prevailing social consensus, reflecting the unpopularity of property restitution to minority churches amongst the Romanian public.This negative public view stemmed from historically engrained prejudice against these churches as Hungarian power structures; it was also underpinned by a sense of social justice that reflected resentment about the restitution of properties to former big landowners, which is part of the legacy of 'reversed' domination and of 'minoritized majorities' (Kymlicka 2007, p. 185).Historical Hungarian churches owned large buildings in urban centres and thousands of hectares of forestry and agricultural lands in the countryside in Transylvania.
'What will remain for Romanians?' is a widely shared sentiment in Romanian cities such as Cluj, where significant properties have been restituted to Hungarians, Jews and Germans, suggesting that properties given to minorities who once held power are now somehow lost to Romanians (Oprea 2014).Regular statements by certain Romanian politicians, including the current president,6 reflect the widespread perception that the Hungarian minority constitutes a threat to the integrity of the Romanian state and nation (Kiss et al. 2021, p. 159). 7Before Transylvania became part of Romania in 1920, Hungarians in Transylvania were the dominant ethnic group, and the Hungarian authorities were commonly viewed by local Romanians as oppressors, largely due to the Magyarisation policies in Transylvania under the dualist monarchy.After 1920, as they had become a minority in Transylvania, Hungarians came to perceive Romanians as migrants intruding into their urban centres, diluting formerly Hungarian spaces.This was exacerbated during the communist period through state policies aimed at altering the ethnic composition of towns and regions inhabited by minorities through relocating the population and forced assimilation.Ethnic stereotyping and mistrust still abound on both sides of the ethnic divide; however, the current power relations-in which Romanians are the titular nation and dominate state institutions-tilted the playing field in favour of the majority nation.
It is argued here that the courts' resistance to restoring properties to Hungarian churches follows the logic of linguistic territoriality (Csergő 2007), which established the dominance of one's language and culture through the occupation of a space as a reification of national identity and belonging.In Romania, the advocacy for the linguistic and educational rights of minority Hungarians is intricately connected to ethnic rivalry for the control of institutions at the local level, often manifested in legal struggles for property ownership rights and restitution.Taking control of institutions such as schools through restitution is viewed through the lens of national sovereignty, which demands the exclusive ownership of space, explaining the resistance of national authorities and the courts to restitute property to the Hungarian community.In this framework, claims by the minority for the property restitution of educational and cultural institutions necessarily clash with the conceptions of the majority about the exclusive cultural ownership of space.In her analysis of property restitution to the Jewish community in Romania, Otoiu (2010, p. 143) arrived at a similar conclusion, arguing that the implementation of property restitution policies served the ethnic majority in Romania, which she called the 'ethnification' of restitution policies.
The next section will introduce the wider legal and political context of property restitution to minority churches.This will be followed by the case studies and a conclusion.For the selected cases, the author consulted judgements at different levels, petitions by the plaintiffs and the claimants, and other supporting documents submitted in evidence by the parties.The Buzau Court kindly granted access to the whole dossier concerning Reformed Mikó College, including the penal and civil cases.The dossiers of the two Catholic schools were provided by the legal counsel of the Archdiocese of Alba Iulia, while the HCCJ's decision regarding the restitution of Reformed Bethlen College is available on the court's website. 8Beside academic works and media articles, the present research was also informed by 12 interviews with lawyers acting for the churches as well as politicians and analysts.Interview work helped to reconstruct the wider context of minority church restitution in Romania.

The political and legal context of property restitution
After 1945, communist authorities in Romania and elsewhere in Eastern Europe 'abusively confiscated' private properties 'belonging to individuals, organisations, and religious and ethnic communities' through expropriation and nationalisation without compensation (Stan 2012, p. 13).In 1989, a violent revolution overthrew the communist dictatorship, which was followed by the 'proto-democratic' regime of Ion Iliescu (Csergő 2007, p. 86).The real democratic breakthrough came in 1996 with the formation of a new coalition government, at which point Romania embarked upon a democratic transition.Property restitution was just one of the various transitional justice measures introduced, which also included lustration, court trials, access to secret files and truth commissions (Stan 2012,  p. 19).Romania adopted a comparatively radical model of property restitution, in principle allowing for the full restitution of abusively seized properties, including real estate, industry, houses, land and forests nationalised during the communist era, to their former owners.In this context, government directives and special laws deal with the restitution of the property of religious communities and national minorities.Four emergency ordinances were adopted at the end of the 1990s (21/1997, 13/1998, 83/1999, 94/2000), 9 each providing for the restitution of a list of specific real estate that used to belong to minority churches and communities.
However, property restitution to minority communities and religious organisations was unpopular with majority parties, which explains why it took so long to turn these four emergency ordinances into law (Otoiu 2010, p. 151).The main motivation of the Romanian government in passing this legislation was the general expectation of the European Union that Romania would adopt some kind of compensation scheme for nationalised properties and guarantees for the protection of minorities (European  Commission 1997).The first and most important law concerning regulating property restitution to minority churches was Law No. 501/2002, which defined the overall framework of church restitution.In 2005, a new law on restitution, No. 247/2005, modified the previous legislation (501/2002, inter alia) and finalised the institutional structure and procedures dealing with property restitution.This law, which deals with all kinds of restitutions including restitution to private persons as well as churches, provided the possibility of financial compensation through a property fund in cases when restitution in kind was not possible.
However, the restitution process that unfolded following the introduction of this legislation was marked by complex property disputes, illegal restitution, corruption and abuse, as became obvious from the controversies that arose in relation to individual restitution claims (Abraham 2017, p. 268). 10The uncertainty of the legal framework led to inconsistent outcomes, in relation to which mechanisms ensuring coherence of adjudication were absent, leading in turn to diverging legal outcomes (Kuti 2009, p. 206).The scale of irregularities was revealed by the proliferation of property restitution cases instituted by individuals at the European Court of Human Rights (ECtHR).Individual property owners sought redress for structural flaws such as arbitrary reversals of court orders and judgements favouring tenants over former owners, also court decisions validating competing documents of title to the same building.A major source of complications has been the Law 112/1995 adopted by the regime led by Ion Iliescu,11 through which tenants could buy the apartments they rented from the state at very low prices (Pora 2021).Many people lived in rented apartments that were seized through nationalisation from their former owners by the communist authorities in and after 1948.When previous owners claimed back their real estates, courts often decided in favour of the former tenants.Although the ECtHR normally ruled in favour of the owners, many of its verdicts were ignored by the Romanian authorities (Abraham 2017, p. 180).By 2010, around 2,000 cases had piled up in the ECtHR, Romania having lost 435 of them by 2013; the highest number of cases related to loss of property amongst EU member states (Stan  2013).Recognising the flaws of Romania's restitution framework, the ECtHR, in its 2010 pilot judgement 'Atanasiu and Others v. Romania', called on Romania to address these systemic problems, which Romania did through passing a new law (No.165/2013).In 'Preda and Others v. Romania', the ECtHR established that this law represented in principle an effective and fair solution to the weaknesses of the restitution framework (ESLI 2016).However, problems remained, such as regarding the 'method used to assess the compensation awarded for properties', as noted by the Committee of Ministers reviewing the execution of the judgement by Romania.12On the 'Atanasiu and Others v. Romania' case, the ECtHR ruled that the owners whose properties were sold to tenants must receive compensation at the market value of their lost property, so Romania adopted a compensation scheme in 2013, which however had not been adjusted in subsequent years reflecting price rises.The supervision of the execution of the judgement on the 'Atanasiu and Others v. Romania' by the Committee of Ministers has still not been closed, indicating that many issues have remained outstanding, the discussion of which is beyond the scope of the current article.
The fact that in 2020 Romania was obliged by the ECtHR to pay a record €34 million compensation to former owners in relation to 188 legal cases demonstrates the failure of the system of property restitution (Pora 2021).Serious delays and irregularities in the restitution process affected all kinds of claimants, individual owners and minority denominations alike.Probably the most famous case of contentious minority church restitution that reached the ECtHR is that of the Batthyaneum Library and Astronomical Observatory in Alba Iulia.Founded at the end of the eighteenth century by Ignác Batthyány, the Catholic bishop of Alba Iulia, the library contains many incunabula and valuable medieval manuscripts; its contents were claimed by the Roman Catholic Archdiocese of Alba Iulia.The government's emergency ordinance No. 13/1998 explicitly mentioned the Batthyaneum as a candidate for restitution.However, this was successfully challenged in court by the opposition Social Democratic Party (PSD) and never took place.The appeal court ruled, in 2003, that Bishop Batthyány in his will had appointed the church and the people of Transylvania as the heirs of Batthyaneum Library.Since Transylvania is now part of Romania, the rightful owner of the library is the Romanian state.The church questioned this justification by highlighting that, after the bishop's death, the ownership rights of the library and the observatory had always passed to the succeeding bishop of Alba Iulia.Importantly, the restitution committee dealing with this case never formally adopted a decision about the Batthyaneum.In 2012, the ECtHR ruled that Romania had violated the property rights of the church by not issuing formal notification of a decision about its restitution request for 14 years after the preliminary procedure (Ballai 2016).Following this decision, in 2015, the restitution commission finally issued a formal rejection of the church's request on the ground that the former registered owner was in fact a cultural foundation named the Roman Catholic Institute of Astronomy.The institute had ceased to exist in 1949 after the communist authorities nationalised its properties.Thus, the archdiocese could not claim restitution in its name. 13he Romanian government sought a compromise with the archdiocese whereby ownership rights would have been shared between the government and the church, but the church was unwilling to accept this option.The archdiocese appealed the decision, which it lost at the HCCJ in 2021. 14revious research suggests that Romania has provided selective redress for past injustices and ultimately made minority church and communal properties the losers of the transition (Kuti 2009, p. 204).For example, by September 2015, only 515 of a total of 1,500 Jewish communal property claims had been resolved, and only 75 properties and parcels of land restituted as a result (ESLI 2016, p. 2).In addition, as of May 2016, 40,000 private property claims by Holocaust survivors were still outstanding. 15aving said this, amongst all denominations, the Greek Catholic Church, traditionally the church of ethnic Romanians, suffered the most.Greek Catholicism was introduced in Transylvania at the turn of the seventeenth and eighteenth century when some Romanian Orthodox bishops were persuaded by Jesuit priests to accept Catholic dogma while maintaining Orthodox rites in exchange for political recognition (Stan 2012, p. 139).At the end of World War II, there were around 1.5 million Greek Catholics in Transylvania, less than half of the 3.7 million ethnic Romanians living in the region (Keleher 1995,  p. 99).In 1948 during the nationalisation process, all its properties were transferred to the patrimony of the Romanian Orthodox Church (ROC), and Greek Orthodox churches were turned into Romanian Orthodox churches.As a result, most Greek Catholics including most ethnic Romanians in Transylvania became members of the ROC.After the fall of communism, the new democratic authorities introduced the principle of the 'will of the faithful' as the basis of restitution to the Greek Catholic Church rather than the existence of a property title (Popescu 2015).This prevented the Greek Catholic Church from recovering most of its properties, given that the former faithful were by then Orthodox.Most of their claims were rejected by the National Authority for Property Restitution (Autoritatea Națională pentru Restituirea Proprietăților); as a result, 90% of the assets nationalised by the communists could not be returned (US Department of State 2019) and remained in the possession of the ROC.
In comparison, Hungarian churches benefitted from a 'golden age' of restitution during the late 1990s and the early 2000s when the Democratic Alliance of Hungarians in Romania (Romániai Magyar Demokrata Szövetség-RMDSZ), the main Hungarian minority party, enjoyed significant influence at the political centre, participating in government coalitions that depended on their political support.During the period 1996-2004, the party was in a relatively favourable position to forge political deals with the ruling parties.Hungarian churches may claim that there has been no real political will to restore their properties nationalised by the communists (Ballai 2016); the impressive number of restitutions, however, suggests otherwise.The four Hungarian churches had together recovered 920 properties and received compensation for 194 nationalised properties as a result of 2,147 applications; decisions had been made in 1,167 cases up until 1 September 2015, while the rest were pending (Ballai 2016, p. 46).Most buildings claimed by the churches had hosted public institutions such as schools, hospitals, libraries and museums after nationalisation, but also included some valuable residential buildings and city residences occupied by private individuals.Restitution to the churches was underpinned by political consensus between the RMDSZ and the mainstream Romanian parties, often manifested in specific decrees signed by RMDSZ ministers that explicitly listed key church properties destined for restitution.That the outcomes of the restitution process largely depended on political deal-making was not unusual, as most of the party's achievements in other areas of minority rights, such as minority language use and education, were also the result of strategic political bargaining with majority parties, characterised by informality and patronage (Kiss & Székely 2016, p. 600).
In this period, the combined effect of RMDSZ's political leverage and Romania's EU integration supported the legal reform of minority rights and created positive momentum whereby many schools and colleges were returned to Hungarian churches across Transylvania, including in Miercurea Ciuc, Târgu Mureș, Satu Mare, Brașov, Cluj, Odorheiu Secuiesc, Arad, Oradea and Aiud (Ballai 2016).Simultaneously, however, deals between RMDSZ and mainstream parties that undergirded this restitution rendered political victories vulnerable to subsequent legal attack.This explains why some restitutions that had been finalised were later overturned, as in the case of the Reformed Székely Mikó College, discussed in more detail below.
By the late 2000s, the previous political consensus supporting minority church restitution had largely evaporated.After Romania joined the European Union in 2007, it no longer needed to prove its pro-minority credentials.This coincided with the weakening of RMDSZ's position at the political centre and the ascendance of the anti-corruption agency, the DNA, which left less room for informal deals and increased the pressure to adopt a more formalistic, procedure-based approach, effectively criminalising the restitution decisions of the SRC by rendering them retrospectively suspect (MacDowall 2016).The courts might have followed a strict application of the legal principle that only nominal owners featured in the land registries could recover properties because of the poor quality of the reparation scheme made up of a large number of constantly amended and supplemented normative acts, as highlighted by the ECtHR's judgements cited above.Nevertheless, as we will see below, the relevant legislation on property restitution did not include the principle that nominal title owners entered in the old registry books must match the name of the claimant of the property.
Started in December 2010, the DNA's criminal investigation into the case of the Reformed Székely Mikó College led to the conviction of two members of the restitution commission in 2014.In retrospect, this case represented a watershed, following which the restitution process for all minority denominations-Jewish, German, Hungarian-slowed down markedly.While from 2003 to 2012 the SRC gave back 1,554 religious properties to minority denominations (US Department of State 2013), from 2013 onwards the number of positive decisions fell to around a dozen a year, while thousands of requests were rejected. 16n other words, before 2012, the SRC approved most requests by minority churches, while thereafter it rejected most of them.The criminal investigation of more restitution cases followed the criminal prosecution of the SRC members who approved the restitution of the Mikó College on the grounds that, before nationalisation, the name of the reformed church claiming back the school building was not displayed in the old registry record as the owner.This had a chilling effect on the SRC's work.The slowdown was, at least partially, due to the SRC refusing to take responsibility for restitution by relinquishing decision-making to the courts, in order to avoid being criminally charged with illegal restitution (US Department of State 2019, p. 12).Thus, the DNA's intervention increased the role of the courts in making decisions about restitution claims, thus undermining the results of political mobilisation that had moved property restitution to minority churches forward until the Mikó case, effectively halting the process.
The DNA's intervention was significant yet does not explain the full story.Ultimately, civil courts denied the churches the right to property restitution, admitting arguments that questioned the churches' historical property rights.What made the property claims of these minority churches particularly vulnerable to legal attack was that, owing to canonical histories, the property owners displayed in the old land registries were different to the names of the contemporary churches claiming these properties, as was the case with Batthyaneum, as cited above.The properties of the traditional protestant Hungarian and German churches were historically registered according to their functions under the name of the respective institutions rather than the name of the church to which they belonged.It is also worth mentioning that unified cadastre records have existed in Transylvania since the second half of the nineteenth century, so property rights have been well-documented despite the changes of regime after World War I and during World War II. 17Most Roman Catholic properties were owned by the Education Fund and the Scholarship Fund of the Catholic Status, a historical self-governing institution of Roman Catholics in Transylvania made up of clerical and lay members, with roots reaching back to the sixteenth century.It was closed down in the communist era (Bagossy 1925,  p. 57). 18However, the courts did not question the property rights of these churches on these grounds before 2010, only afterwards.Importantly, in the relevant legislation this was not a requirement, which is why it was not defined as a condition by the SRC and the courts in the early 2000s.Governmental Emergency Ordinance No. 94/2000, which deals with church restitution, allows for witness testimonies, expert opinions and any 16 See, 'International Religious Freedom Reports-Romania', United States Department of State Romania, 2014-2019, available at: https://www.state.gov/international-religious-freedom-reports/,accessed 28 April 2023.
17 Other historical regions of Romania used a different system of transcription and inscription registers, and it was not until 1999 that the cadastral system used in Transylvania was applied to the whole of Romania (Paunescu & Paunescu 2021). 18According to the Accord of Rome signed between the Romanian government and the Vatican in 1932, the Roman Catholic Status of Transylvania was taken over by the Roman Catholic Diocese of Alba Iulia, which became its legal successor.The diocese became an archdiocese in 1991 (Biro 1992, p. 468).
other evidence to prove ownership.Furthermore, according to this ordinance, the legal act of nationalisation of 1948 was sufficient basis for the recognition of the existence of property rights on condition that there was no evidence to the contrary. 19Nevertheless, as the case studies will demonstrate, after 2012 the restitution commission and the courts adopted the position that only the nominal owners featured in the land registries could claim nationalised properties, while dismissing all other evidence proving property rights.
The first case that will be discussed here is the restitution of the Reformed Székely Mikó College.The final decision in the Mikó trials, which lasted almost two decades, was adopted by the HCCJ in 2018 and denied restitution to the Reformed Church on the basis that the school's owner was registered in the land records under the name 'Reformed Mikó College' not the 'Reformed Church'.Importantly, the ruling of the court in the Mikó case contradicted a previous decision of the HCCJ in 2010 concerning the restitution of the Bethlen Reformed College in the town of Aiud that had the same legal status, the property title belonging to the college itself.Despite this, in the Bethlen case the court approved the church's property right.The ruling in the Mikó case marked the turning point in the restitution process to minority churches, while the judgement in the Bethlen case illuminates the initial approach.
In the 2010s the tide was also turning for the Archdiocese of Alba Iulia with the restitution commission rejecting most of its outstanding claims, and its decisions upheld in court.In the early 2000s, four school buildings previously owned by the Education Fund and the Scholarship Fund of the Catholic Status were restituted to the Archdiocese of Alba Iulia, the legal successor of the Catholic Status.Conversely, restitution requests for the buildings of the three other schools owned by these funds were rejected by the SRC and the courts after 2015, based on the argument that these funds were public property before nationalisation.The contradictory approaches will be illustrated through comparing the restitution process of the properties belonging to two Catholic high schools in Târgu Mureș and Cluj.
At the time of writing, interestingly, this committee is yet to be established.Although he refrained from linking this directly to minorities, the connection must have been clear to his audience, as was explained by Bogdan Diaconu, a member of parliament and Ponta's Social Democratic Party, who explicitly accused Hungarians of trying 'to take [Transylvania] back bit by bit' through property restitution (Diaconu 2014).Allegations that Hungarians were 'stealing' Transylvania became part of the mainstream discourse,23 creating the political context for the jurisprudential shift associated with the remaining cases of restitution to minority churches.

The jurisprudential shift
The legal case of the Reformed Székely Mikó College in Sfântu Gheorghe This landmark case concerned a school that was founded in 1857 by the assembly of the Reformed Church in the town of Sfântu Gheorghe from private donations. 24The biggest donor was the ethnic Hungarian count, Imre Mikó, chief warden of the Reformed Diocese of Transylvania, after whom the school was named following his death in 1870.The school was entered in the land registry under the title 'Ev.Ref. Székely Mikó Kollégium' (Evangelical Reformed Székely Mikó College) in 1900 at the request of the Reformed Church, thus the college itself was registered as its own proprietor.Nevertheless, the school building was taken away from the Reformed Church during the 1948 nationalisation through a legal decree that noted the church's ownership rights in the interwar period.Its title was restored to the Reformed Church by the Special Restitution Commission in 2002 based on Government Decree No. 1334/2000, which listed several church properties from different denominations specifically selected for restitution.
The long legal saga of the college's restitution started with a civil lawsuit filed by the church following the adoption of the Government Decree No. 1334/2000 on 14 December 2000.Wanting to claim ownership, in the context of the college's restitution process, of two apartments belonging to Mikó College that were bought by their occupants in 1997, the church sought to invalidate the sales contracts.In decision no.125/A/20.10.2005, the court of Covasna established that the church was indeed entitled to claim back the college's properties as these had been expropriated from the Reformed Church in 1948.This first-instance ruling was also confirmed at the appeal stage by a legally binding decision adopted by the Brasov Tribunal (No. 187/R/15.03.2006).Subsequently, the case was sent back to the first-instance court of Sfântu Gheorghe for an examination of the legality of the sales contracts, which were subsequently annulled by the court. 25The owners of the apartments, who happened to be ethnic Hungarians, appealed against this ruling, and also filed a criminal complaint to Romania's National Anti-corruption Agency against the restitution commission's three members for unlawfully giving back Mikó College to the church on the basis that it was not displayed as the owner in the land registry.Thus, the civil case was suspended by the criminal procedure, which represented the second phase of the legal challenge against the college's restitution.
In December 2010, the Buzau Tribunal sentenced the three members of the restitution commission to three years' imprisonment.This sentence was appealed by the defendants and was subsequently modified by the Ploiesti Appeal Court.In the final verdict of November 2014,26 the court sentenced two members of the restitution commission to three years of suspended imprisonment for abuse of office against public interest, causing €1.3 million-worth of damage to the state by illegally giving back property to the church, while the third member was acquitted.
The Ploiesti Appeal Court also declared the restitution of the Mikó College to the Reformed Church to be unlawful; thus the Reformed Church lost its property rights in relation to the college.However, it did not rule out that the church was the rightful owner of the Mikó: it only argued that procedural flaws rendered the decision void.It established that the SRC had not adhered to procedural rules when restituting the college to the church, as it had adopted its decision based on two uncertified photocopies of land registry extracts that showed an owner other than the church (namely, the college itself).Furthermore, the SRC had failed to obtain necessary confirmation from the Ministry of Public Administration about the legal status of the property in question: such a document was missing from the case material.Simultaneously, the court also maintained that examining whether the church was the rightful owner was not relevant to the case, and nor was this the responsibility of a criminal court, but rather of a civil court.Nevertheless, it also concluded that, based on the documents submitted to the SRC, the Reformed Church's ownership rights could not be established, as the land registry entry displayed a different owner than the church.
The Reformed Church resubmitted its request to the restitution commission in 2015.The request was rejected in 2016 noting that the old land registry did not have the church as the owner.The church appealed this decision but lost in 2016 at the Brașov Appeal Court, which reasoned that the transfer of the Mikó College from the Reformed Church to the state upon nationalisation in 1948 did not imply recognition of the church's property right.It meant only the need to recognise the church's procedural locus standi to claim back the college through property restitution.Since the school was taken away from the Reformed Church upon nationalisation, it had the right to file a claim for it, however whether it was also the rightful owner had to be examined further by the SRC.Moreover, as far as the court was concerned, the historical works offered as additional evidence by the church, showing that it was the founder of the college and that the college had been taken away from the Reformed Church, only indicated that the church was the 'supervisor and administrator' of the school rather than its owner. 27A final appeal to the HCCJ in 2018 was rejected, with the court declaring that 'beyond any doubts, the Reformed Church was never the owner of the College'. 28he main reason offered by the Brașov Appeal Court and the HCCJ for rejecting the church's request was that the former owner, according to the land registry, was not the Reformed Church but the college itself.According to these courts, the owner entered in the land registry before nationalisation should be considered the real owner.
The civil courts-the Brașov Appeal Court and the HCCJ-essentially adopted the argument presented by the DNA prosecutor in the penal case as discussed above that in 1870 the church had renounced its right to the college for financial reasons and asked the local government of Sfântu Gheorghe to take over the school.The same year, the local government established a new elementary school.Elementary classes were gradually phased out at Mikó College, which became a high school (Domján 1898); Mikó College and the public elementary school operated as two separate entities.
Historical accounts of Mikó College published at the turn of the nineteenth century (Domján 1898; Mózes 1909) and several pieces of evidence submitted by the church show that Mikó College did not become a public school in 1870, as the prosecutor had claimed.The Protocol of the Reformed Church of Transylvania, adopted in 1885 by the church's general assembly in Cluj, listed Mikó College as a Reformed Church school, 15 years after its alleged transfer to the local authorities (Benkő & Bodor 1885, p. 43).Furthermore, as can be seen in the college bulletin for 1889, when a contract was signed between the church and the state concerning an annual grant to help the college cover its expenses, it is explicitly mentioned that the school's own financial resources were still greater than the amount of state aid, in order to preserve the school's 'denominational character and self-governing competencies' (Benke 1890, p. 45).The fact that the contract about state aid was signed between the Reformed Church and the Ministry of Education in 1889 clarified that the school was not owned by the state and, more importantly, that the school lacked legal personality and the church enjoyed ownership rights (Pap 1899, pp.145-49).If the local government was the owner of the school after 1870, this should have been clear from the grant contract and other records, but it was not.Nevertheless, the Brașov Appeal Court established, as was also maintained by the HCCJ, that the school had its own legal personality based on the wording of the state aid contract and the aforementioned church protocol of 1885, which both referenced Mikó College as an 'autonomous church organism' that governed itself and owned its properties.As was highlighted by the legal representative of the church, the courts thus completely ignored canonical law and the history of the church according to which Reformed Church schools never had their own legal personality.
While schools had self-governing rights as autonomous institutions, they were part of the Reformed Church; thus the schools possessed and used church property (Dósa 1863,  pp.204-5).It was a general custom to register Reformed Church properties according to their functions.This applied not only to the names of schools but also to the offices of cantors or priests, whose formal title included the adjective 'Reformed'.None of these entities constituted independent legal personalities in relation to the church (Veress 2020,  p. 87).As the church's legal counsel pointed out, in 1907 and 1911 the Ministry of Justice (of Hungary at the time) adopted two ordinances, No. 2270/1909 and No. 19407/  1911, recognising that Reformed Church properties were generally entered in the land registries according to their function but emphasising that this 'does not jeopardise the property rights of the church in any way'. 29These and other proofs presented by the church's legal counsel were ignored by the courts, including a document of authorisation of operation issued for Mikó College by the Romanian Ministry of Education in 1928, which explicitly stated that the Reformed Church was the owner of the college. 30The court also rejected as proof of ownership the 1937-1938 college yearbook, which again explicitly asserted that the college was the property of the church (Veress 2020, p. 90).
That the church lost its property rights over the college does not endanger Hungarian education in Sfântu Gheorghe, as the local government is dominated by RMDSZ while the city is 70% ethnic Hungarian.Rather, its potential precedent-setting effect threatens Hungarian education in other reformed colleges, namely those in Târgu Mureş and Odorheiu Secuiesc, which had the same legal status, and were restituted in the same way as Mikó College had been, by the Special Restitution Commission, making them vulnerable to similar legal challenges and even criminal prosecution.Even though the Romanian legal system does not recognise legal precedents, HCCJ decisions are important reference points for future judgements by courts at all levels.
The Reformed Bethlen College in Aiud: a contradictory judgement by the HCCJ Before 2010, the church's ownership rights had not been questioned on account of the land registry records showing the respective institutions as independent proprietors.Quite the contrary: a HCCJ decision from 2010 about the restitution of the Reformed Bethlen College of Aiud affirmed the Reformed Church's ownership, despite the land records showing the college itself as the property title holder.Representatives of a private company that wanted to buy some properties belonging to the school appealed against the restitution of the college in 2004, arguing that the school, rather than the Reformed Church, was the proprietor of the building recorded in the land registry before nationalisation.As the claimant explained, for this reason the court should not accept proofs submitted by the church indicating its property right.These proofs included the fact that the school was nationalised in 1948; a document issued by the Romanian Ministry of Culture in 1941 showing the church as the owner; and the ordinances of the (Hungarian) Ministry of Justice addressing the legal status of Reformed Church properties in 1909 and 1911 (mentioned above in the context of the Mikó case).In its judgement, the court of appeal accepted the documents provided by the church and confirmed the church's property rights, a judgement that was also upheld by the HCCJ.In the Bethlen case, the HCCJ invoked canon law in its judgement affirming the church's property right and explaining why the church was the owner despite the land records stating that the school was its own proprietor. 31In the Mikó case, the church submitted the same arguments to prove its ownership; on that occasion the HCCJ did not accept them.
Thus, the HCCJ's judgement in the Mikó case directly contradicted its earlier ruling in the Bethlen case, reflecting a shift in jurisprudence within a span of ten years.This reflected the transformation of the political environment in which the pressure over Romania for the protection of minority rights had weakened after EU accession, while the DNA started its investigation into restitution cases.The courts decided to ignore canon law that regulated property relations at the time and failed to take account of how religious schools historically functioned in Transylvania, insisting on respect for the formalistic requirement that the property title holder in the land registry must match the name of the claimant.The disregard for former legal norms considered relevant to such cases made the churches the losing parties.

The restitution process of Catholic high schools
The courts' interpretation of the Catholic Church's property rights went through a similar transformation over a period of 12 years.In the early 2000s, around half of the 470 claims by the Roman Catholic Archdiocese of Alba Iulia, including its requests for the restitution of four high schools, were approved by the SRC.For 12 years after 2004 hardly any decisions were made about outstanding requests, followed by a series of rejections starting in 2016 concerning 45 property claims, including the remaining three high schools. 32Of the four schools that the church successfully claimed back in the early 2000s, the restitution of the school in Târgu Mureș was challenged in court by the city mayor, but the HCCJ upheld the church's right of ownership in 2005.This and the other three schools were owned by the Education Fund or Scholarship Fund of the Catholic Status before nationalisation, and these organisations were listed as the owners in the land registry.The difference between the actual and registered proprietors was not an obstacle to restitution in the early 2000s, as the ownership right of the Status and its legal successor, the Archdiocese, over the two funds was not questioned by the SRC or the courts at the time.The mayor challenged the school's restitution on the basis that the property was home to the public high school, Unirea, an institution serving public interests, thus-as alleged by the mayor-the SRC should have obtained the Education Ministry's opinion before making its decision.The HCCJ ruled in favour of the church, finding that restitution represented the reparation of abuses committed by the state rather than a breach of property rights of the local government over the school.33However, this legal victory for the church soon turned sour, as repeated legal attacks undermined the operation of the Hungarian Catholic school founded by the church in 2014, reopened on the premises of the restituted building shared with Unirea (Huszka 2022, p. 1348).The Archdiocese agreed that Unirea could stay in the building for 20 more years beyond the law-mandated minimum five years, as part of a special deal with the local government.Through this deal, the church tried to secure the reopening of its Hungarian school in the building, for which it had to receive permission from the local government; however, the legal cases brought against the school since its foundation prevented this from going ahead. 34The church in the meantime tried to terminate the rental contract with the Unirea high school in 2017, but its decision was again challenged in court. 35here was a long pause in all post-2004 legal processes related to the restitution of Catholic Church properties as hardly any restitution-related decisions were made regarding the outstanding requests of the Archdiocese until 2016.The Archdiocese turned to the SRC for an explanation as to why the SRC was not adopting decisions on its claims.It was told that the Status Funds had unclear legal status, so no decision could be made until this was clarified. 36In 2008, discussions between the Archdiocese, the SRC and the Ministry of Justice about the legal standing of the two Status Funds, with the participation of jurists and scholars, failed to produce agreement. 37This episode suggests that the changing approach of the courts was part of a coordinated process involving other actors.The properties of the three schools, the restitution of which was denied the church in 2016, had a legal status identical to the school in Târgu Mureș and the other schools given back to the church in the early 2000s, all being previously owned by the Catholic Status's Education Fund or its Scholarship Fund.Yet, in 2016 the difference between the de facto and registered proprietor became the reason for the SRC's rejection of the church's petitions.
As the restitution commission explained in the case of Báthory High School in Cluj, the claimant-the Archdiocese of Alba Iulia-was not the former registered owner of the school but rather, the Scholarship Fund; the Archdiocese, as the successor of Catholic Status, only had a right of administration over the assets of the Fund rather than a right of ownership.After the Archdiocese's appeal, the case continued at the Cluj Court of Appeal, where the claim was again rejected.Although the court acknowledged that the patrimonial rights of the Status Funds came to be represented by the Archdiocese of Alba Iulia based on the Accord of Rome as of 1932, the court maintained that the church could not prove that the Status or its successor, the Archdiocese, was the owner of the Status Funds.According to the court, the Accord refers to the Diocese as the administrator of these Funds rather than their owner.Moreover, the land registry did not prove that the Diocese or the Status had owned the properties in question, as they were registered under the name of the respective Funds (in this case, the Scholarship Fund). 38Moreover, the court further reasoned, these Catholic Funds were ultimately public assets, despite their ecclesiastic character. 39he Archdiocese sought review of the appeal judgement on the basis of additional evidence showing that it was the proprietor of the Funds, particularly because the Diocese had the school registered in its name in the land records.Báthory High School was entered at the request of the Diocese in the (Hungarian) land records in 1898 as the property of the 'Roman Catholic National Scholarship Fund', subsequently rectified as 'the Scholarship Fund of the Roman Catholic Status of Transylvania'.Moreover, during the interwar period, the Funds and various individuals concluded several sales contracts that were signed by the head of the Status on behalf of the Funds, suggesting that the Status was the entity with the right to dispose of these assets.After the Accord of Rome was concluded in 1932, and the Diocese became the legal successor of the Catholic Status, sales contracts were signed by the Episcopate of the Diocese of Alba Iulia on behalf of the Funds. 40The church also raised the question of why the state needed to expropriate lands from the Catholic Funds during the land reform in 1921 if they were already in state ownership during the Hungarian era, as the courts claimed.Eighty percent of the land owned by the Catholic Church were confiscated in 1921 as part of the land reform in Romania, yet it retained many of its other assets, amongst them the schools in question.Furthermore, if the schools were public property, why were they nationalised by the communist authorities (from the Catholic Church) in 1948? 41he final decision was made by the HCCJ in 2019. 42Based on a lengthy historical analysis of the evolution of the Catholic Status and its assets, the Court concluded that the Funds' assets were public property, as derived from the right of patronage of the king during the Hungarian era.The king's right of patronage (Latin: ius supremae patronatus), which signified the king's right to name Catholic bishops and prelates, also gave the king a supervisory role over Catholic assets.This right was interpreted broadly in the late nineteenth century by successive governments in Budapest, which tried to appropriate the Status Funds by reserving for themselves the right to handle these assets (Sarnyai 2015, p. 85).As the HCCJ reasoned, because of the king's right of patronage, Catholic Church property was in fact public property under Hungarian rule; after Transylvania became part of Romania, under the Treaty of Trianon the right of patronage was conferred upon the Romanian state and the concomitant status of public property upon the church's property.While the HCCJ's judgement also acknowledged that Catholic funds were not mentioned in the Trianon Treaty under any category of public assets, the court speculated that these must have belonged to the category of public properties that had to be redeemed by the Romanian state.
Furthermore, the HCCJ found that the Accord of Rome, which specifically addressed the situation of the Status Funds, supported the view that the Archdiocese was only an administrator of the funds rather than their proprietor.However, it is difficult to read the Accord as reinforcing the property rights of the state over the funds.According to the Accord, the property rights of the funds 'are to be guaranteed … in favour of the respective funds' in the sense that they can be used only for the purpose they were created for.The Accord clarifies that the funds are legally represented by the Archdiocese of Alba Iulia, whereby all rights of patrimony will be administered by the Diocese and cannot be alienated. 43The document does not mention that the funds' assets are public property.
The abrogation of the Roman Catholic Status and the confiscation of its goods were on the agenda of Romania's authorities in the interwar period.As Sabrina Ramet explained, Romanian authorities campaigned against the church 'by harassing the Roman Catholic hierarchy and raising questions about the 250-year-old Status' (Ramet 1998, p. 187).However, one of the reasons why the Accord of Rome was signed in 1932 between Romania and the Vatican was to address the situation of the Status Funds.Based on this text, it seems quite a stretch to argue that assets of the Status Funds were public property, even by the standards of the Romanian governments of the interwar period.These governments evidently saw a need to sign the Accord, which clarifies the legal status of these Funds, rather than simply confiscating them as public property.
Comparison of the earlier cases of successful, court-approved restitution with these latter cases of rejection reveals that the SRC and the courts changed their view about the ownership of the Status Funds.In reading these cases one might think that it had not occurred to the SRC and the courts in the early 2000s that the Funds were not owned by the Archdiocese before nationalisation but were in fact public property.This situation was also reflected in the case of Batthyaneum, where the property claim of the Catholic Church was first denied in 2003 by the courts based on the interpretation of the will of the late bishop rather than by referring to the mismatch between the property title holder and the name of the church.Only in the last phase of these trials, from 2015 onwards, did the SRC and the courts start to reject the church's petition by arguing that the name of the archdiocese claiming ownership was not the same as that of the Roman Catholic Institute of Astronomy displayed in the old land registry as the former owner.

Conclusion
This overview of the last 20 years reveals the specific trajectory of the process of restoring property to minority churches in Romania.Initially, this process was motivated by EU conditionality on the protection of minority rights and the reparation of abuses committed by the communist regime before Romania joined the European Union.This was subsequently undermined by the DNA's anti-corruption interventions and the courts' change in approach, no longer accepting claims when the actual and registered proprietors were not identical, set in motion by the EU's rule-of-law requirements pertaining to Romania.After Romania joined the European Union and external pressure for minority rights protection weakened, rulings against minority churches began to happen across the board, in the context of the courts applying greater legal vigour to church restitutions.This affected not only the Hungarian Reformed and Catholic churches but also the German Lutherans.The Jewish community also saw most of its claims denied by the SRC and the courts, the latter usually referring to insufficient documentation of property rights.Many of the documents requested by the SRC as proof of ownership can be found only in government-managed archives, which failed to process Jewish claimants' requests for these documents in time to meet deadlines for document submission by 2003 (US Department of State 2019).The Hungarian government attempted to support the ethnic Hungarian minority in Romania by officially keeping some prominent cases of church restitution on the bilateral agenda, including the Mikó case. 44In reality, however, Hungary was not in a position to intervene effectively on their behalf, partially owing to its tarnished image as an illiberal democracy that is undermining the rule of law in the heart of the European Union.
Lending legitimacy to critical views of the role of the courts, the Fourth Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities also noted the negative effect of court procedures on the process of restitution to Hungarian churches. 45Negotiations between the Archdiocese of Alba Iulia, the Special Restitution Commission and the Romanian Ministry of Justice further suggest that serious thought was given to this issue outside the courts at various levels, including in national politics.Ultimately, the SRC and the courts halted the restitution process, which was generally viewed as the symbolic occupation of Romanian space by Hungarians and other minorities.Although questions can be raised as to whether the churches have enough economic resources to use and maintain the restituted buildings, this does not affect their legal title.Moreover, properties can be sold if their maintenance is beyond the means of the legal owner.
The courts seemed to have found the key to stopping the restitution process to minority churches after 2011 in the old land registry records.Insisting that the owner displayed in the property registry must be identical to the legal entity making the claim proved an efficient way to deny restitution to minority communities, including Hungarians and Germans.However, this requirement was not imposed in the early 2000s when many properties were restored to minority churches.The later decisions of the high court contradicting its previous judgements are also problematic from the perspective of legal consistency, an important element of the rule of law, even if they are not illegal, given that Romanian law does not regulate judicial precedents.The ECtHR, in a judgement that concerned a subject other than property restitution, criticised the Romanian HCCJ for delivering 'diametrically opposed judgements, sometimes on the same day' that undermined legal certainty. 46oth the Reformed Church and the Catholic Church have turned to the ECtHR concerning these recently lost cases.Fears are now growing in the churches that restitution decisions made earlier could be overturned if this requirement is now applied retrospectively to earlier property restitutions, leaving the legal status of most recovered properties in limbo.Even if overturning previous decisions and thus recovering properties 'lost' to minorities does not occur, the present status quo will keep minority churches in check by making them vulnerable to subsequent legal attack.
Sensing growing public anger over this issue, in November 2013, then Prime Minister Victor Ponta urged the creation of a special parliamentary committee to investigate restitutions in Transylvania.22