On this page, you can read about the way the Romanian
Justice applies the Law nr.
10/2001 and its norms outlined in the HG 498/2003 which deal with the restitution of the
property that was nationalized during the Communist regime.
In order to place this case
of corruption in the right context, please look for Romania in the Corruption
Perception Index for 2003 compiled by the organization Transparency
International – Romania is tied with India and Malawi on the 83rd
spot (lowest number represents the least corrupt country)!
I consider that making public the entire process to
take possession of the house that was illegally taken from my grandparents by
the Romanian State in 1950, will help eliminate any future influence of the
Romanian corruption in this case. I wish
to make sure that the Romanian laws are correctly applied during the Judicial
process contrary to the influence exerted by important people from Romania who
are trying to protect the financial gain that can be drawn out form the illegal
actions that took place.
The people implicated in this case (incomplete list):
I will timely update this page
and the corresponding Romanian one, with the latest events in the course of
this laborious process to get back the house that was illegally taken from my
grandparents in 1950! I present this
case to the Romanian and International community as a test of the will of the
Romanian Government and of Romanians to fight the CORRUPTION!
The Law
nr. 78 bis of 08/05/2000 that deals with the prevention, discovery and
punishment of corruption can be read in the Romanian language here.
You can help me in this quest by forwarding this Web
address to your friends or to publications that are willing to reveal the corrupt
actions of people that teach the law in various Romanian Law Universities. Up to this
day, different aspects of this case were covered in three Romanian newspapers
and one Canadian newspaper, but more effort should be placed in actually
revealing the illegal actions committed by “respectable” members of the
Romanian society. This page offers not
only my view, as PwC likes to state, but also the documents that prove my
accusations. It is highly subjective
that my accusations proven to documents signed by PwC are presented in a
similar fashion to the official PwC response that contains only claims and no
proof!
I would like to invite you
to read about this case from the chronology of events, offered
in chronological order below, with all its legal
considerations and to continue with the analysis of the current court case
(presented in a blog, reverse chronological order format).
For comments, please use the
guestbook. The guestbook entries can be seen here.
A quick preview of events: -
on July 22nd, 2004 with the help of a bailiff and the Romanian
Police, against the opposition and slimy maneuvers of PwC and their partner
Agrotorvis, I took possession of the house!!! One goal was attained, two more to go!
Also, a follow-up story to a
year old article (read here page 1 and page 2) in today’s
Ottawa Sun by
The Corruption
in Romania, live on the Web
in blog format
Ř
May 20th, 2004 – The result of the expertise is presented to the
Court by ing. Zeno Oltean. The result of
this report reads « The house located in
Ř
May 12th 2004 – The daily Prima
Ora does a one page special (scanned version) on
this case, presenting in a correct chronological order the actions taken by PwC
with the house, stressing the privately signed contract between PwC and
Agrotorvis SRL, through which Agrotorvis bought the litigious rights to the
house for 80.000US$! The newspaper
article contains parts of memo that I sent to Romanian President in which I ask
Mr. Ion Iliescu “to ensure that this case is a model attesting to the
success of the anticorruption measures in
In
PwC’s response to my accusations presented in the article, it claims „PwC has never refused the restitution of
the house that was claimed by Eugen and Gratian Szekely.” This
falsehood (lie) is disproved not only through Emilian Radu’s letter of
August 2001 (page
1 and page 2)
but also in numerous documents submitted to the Courts. The most recent one was made by the lawyer of
COMTIM, Florin Scrieciu on March 18th, 2004 who claims that „response
letter…represents the clear and unambiguous response to the plaintiffs’
notification (request for restitution my note), in the sense that the
restitution is not possible”.
Making use of the strategy to cover
illegal actions with falsehoods, PwC continues to falsify the truth by insisting that our request for restitution did not contain
enough documents proving our right to the inheritance. Through this claim, PwC ignores deliberately
the fact that Emilian Radu’s letter, in response to our restitution request,
sent in August 2001, makes no reference to such a lack of proof (in reality
this issue was addressed in Court in January 2000!). Furthermore, PwC contents that “only on March
18th, 2004 the Judge reached the conclusion that Eugen and Gratian
Szekely have the legal right to inherit the house”. Another PwC falsehood as at that date, as it
can be read in the official
minutes, „the Court observes that,
in its response, the holder of the house did not contest the right to the
inheritance of the plaintiffs…” declining in this way the exception raised
by COMTIM in this trial!
Ř
April 29 th, 2004 – The technical expert, appointed by the Court,
requests a postponement in order to finalize the expertise. The Court grants a 3 weeks postponement. We submit the following two documents: analysis of the
COMTIM’s request for the expertise and the impact of
the decision relative to the illegality of Romanian state title and we
request the Court to impose the restitution and the transfer of the house by
COMTIM and PwC as it is mandated by the law.
The lawyer for COMTIM, claims, without elaborating, that the decision to
change the title deed to the house in our favor does not represent the
restitution of the house! The Judge
postpones this discussion until the following date, May 20th, 2004.
Ř
April 23rd, 2004 – In the trial based on the civil law that has as
object whether the Romanian state took possession legally (by the laws in effect
in 1950) of the house, the Court through the civil
decision nr. 347, part of the case nr. 8532/2000 at the Appeal Court
Timisoara, the Court rules in favor of
the plaintiffs against the accused (COMTIM through PricewaterhouseCoopers
and the Local Administration of Timisoara in the name of the Romanian
State). Through this final and
unappelable decision it is ruled that the Romanian State took illegal possession
of the house in 1950 and it is imposed the changing of the title deed of the
house in our favor (the initial decision
of the lower Court that was confirmed through this recent final decision can be
seen in Romanian page
1 and page 2).
Ř
March 18th, 2004 – The Judge Lidia
Barac declares that it is irrelevant that Ionas Klein was married before he
married Agneta Klein (in other words, admitting the obvious, that the
marriage certificate presented is valid!!).
This way, the Court declines the
exception request raised by COMTIM, declaring (as it can be read from the
minutes of the session) that PwC did request us to provide proof of our right
to inherit the house in their refusal of the restitution of the house (as this
matter was proven in front of the Court as far back as January 2000), and moves
to the analysis of the complaint (in other words after 5 months of
desperately trying to prove that we have no right to claim the house, the Court
rules that PwC couldn’t even raise this exception in 2003 as they didn’t do it
in 2001! Although PwC and the Court
managed to delay the restitution of the house by 5 months!!!). The
Judge Barac, declines a second exception raised by PwC and COMTIM, claiming
that PwC should not be part as the accused in this trial (through this
exception, PwC was attempting to evade responsibility relative to the actions
and decision that it made relative to the house). The third exception raised by COMTIM,
relative to the delayed modification of the object of the current case was
postponed by the Judge until the discussion of the main object of the complaint
(through this exception COMTIM claims, against the illegal nature of their
refusal, that we had to sue them within 30 days of the date when we had
received their refusal and we couldn’t sue them to issue a law complying
decision as we did. This is in other
words, another desperate attempt to falsify the truth and to distort the
obvious cause-effect link between their illegal actions in the past).
In
the same session, the legal representative for COMTIM submits a written and
verbal request maintaining the necessity of a technical expertise in order to
prove COMTIM’s point that the improvements that they made during their 27 years
of rent free usage transformed the house into a new house relative to the one
that was nationalized by the state in 1950 (http://www.oocities.org/coruptiainromania/exper1.jpg
and http://www.oocities.org/coruptiainromania/exper2.jpg). In the request, COMTIM claims that it
requested this expertise as well on March 27th 2003 but forgets to
mention the article of the law 10/2001 that they used in that initial request
(the initial request can be seen in Romanian http://www.oocities.org/coruptiainromania/scr_mar_2003-7.jpg). This lapse can only be interpreted as the
intent of the lawyer Scrieciu to the test the memory and the judges’ knowledge
of the law 10/2001 and HG 498/2003 (for more details see the article invoked by
COMTIM in the legal part of this blog – art 18 c). Although,
Scrieciu, as it can be read from COMTIM’s document, uses arguments that are
invalid by the law 10/2001 and HG 498/2003, the Court accepts the request and
demands a technical expertise! The
Court allows us, at the request of our lawyer, to submit a list of objectives
for the expert (the document that we submitted contains the objectives as
outlined by the HG 498/2003, emphasis being placed on the question if the
additions to the building represent more than 50% of the already existing
surface) and the name of our expert to assist the Court appointed expert. The case is postponed until April 29th, 2004. The minutes of the meeting in Romanian can be
seen here – page1
and page 2.
Ř
Memos were submitted requesting a criminal
investigation in the actions of the
Syndic Judge Rodica Marghescu and those of the PwC Partners and employees which
as the liquidators of COMTIM transacted the house requested in accordance to
the Law 10/2001, selling the litigious rights to Agrotorvis SRL. These
memos were submitted to PNA Bucharest (Anti-Corruption Commission – Parchetul
National Anticoruptie), PNA Timiş and the District Attorney’s (the US
equivalent of Parchetului de pe langa Tribunalul Timisoara) and present proof
of illegal premeditated actions in breach of the Law 78/2000 by
the participants in the transactions.
The memos, underlining the corruptor character of PwC’s actions and the
intention of extending the fraud against me to the Romanian state (as in PwC’s
intent the State was responsible to pay the equivalent of the value of the
house to us as damages for the PwC’s refusal to return the house to us), were
sent to the following Romanian politicians: the President of Romania, the Prime
Minister, the Minister of Justice, the Minister of Control and the General
Prosecutor of Romania.
Ř
March 4th, 2004 – the response
to the request sent by the Court to the Civil Registry Office arrived only
after the end of the session, as can be seen to the session’s minutes! And yet, the Judge Barac names an expert for
the eventual technical expertise although the expertise has not been decided by
the Court? We submitted a document to
the Court presenting the responsibility of PwC in this case, stressing the
transaction that took part between PwC and Agrotorvis SRL. As well, we submitted a document showing that
PwC did not prove any of the improvements to the house which that use as
arguments in order to categorize the house as a new house relative to the one
that was nationalized by the state in 1950 based on art 18
alin. C of Law 10/2001 and the corresponding art of HG 498/2003 (the new
additions should be more than 50% of the existing house). The trial is
postponed for two more weeks, until March 18th 2004 – the minutes
can be read in Romanian here – page 1.
Ř
February 12th,2004 – Although on the previous court date, Scrieciu
requested a postponement for sick reasons, he does not show up but sends in a
substitute! The surprise comes from the
Judge Lidia Barac, who declares that she has doubts (stressing that she is
allowed to have doubts) relative to the
marriage between Agneta Klein and Ionas Klein due to the large difference in
age between the two (not only this aspect is irrelevant but it is highly
inappropriate coming from the Judge that is supposed to rule in this case)!
Furthermore,
invoking the right to participate actively in the trial, the same Judge Barac,
outlines the theory that due to the fact that Agneta Klein and Ionas Klein could have had different addresses would mean
that they might have been divorced at the instance of Ionas Klein’s death. Although, our lawyers explain that the
addresses that were mentioned by the Judge were addresses were Agneta Klein
lived after 1958 (the year when Ionas Klein died) and they only represent three
address changes over a span of 35 years, the unmoved Judge requests a
confirmation from the Civil Registry Office that Ionas Klein was not married
before (indirectly claiming that Ionas Klein was a bigamist and questioning the
veridicity of an official act) and that Agneta Klein and Ionas Klein did not
divorce before Ionas Klein’s death.
In
an absurd ending of this surrealist Court session, PwC’s commercial lawyer,
Ovidiu Covasala mentiones that he was about to raise the same issue to the
attention of the Court, but he couldn’t find the document which shows that
Eugen Klein was married in 1931 (so lucky that the Judge was impartial!!!)
The
Judge requests from the Civil Registry Office : - a copy of the entry in
the Civil Registry noting the marriage between Ionas Klein and Agneta Klein
(multiple copies of the registry entry were introduced in the case’s file in
different format all presenting the same thing), - to verify if the marriage
was not dissolved (verification already done by the notary and introduced
months before in the file) and if Ionas Klein was married before (what can be
the relevance of this information? The notary had already inquired if there
were any oter claims to the inheritance) and – strict verifications based on
the birth certificate of Ionas Klein to establish if he was previously married
(repeat – irrelevant). The case is postponed until March 4th,
2004. The official brief minutes of
this session can be read here – page1 and
page 2.
Ř
January 22nd, 2004 – The lawyer Scrieciu submits a doctor’s certificate
and requests a sick postponement (in the previous lawsuit, where we requested
that PwC responds to our request for restitution in compliance with the law,
Scrieciu has requested 11 postponements)! The trial is postponed until February 12th,
2004. The official brief minutes can
be read here – page 1
Ř
December 18th, 2003 – The notary’s file manage to find its way to the
Courthouse (a few hundred of meters away) and we submit a document proving that
Eugen Klein built a house on the land that he acquired through public
auction. COMTIM requests a postponement
claiming that their lawyer, Scrieciu Florin is elsewhere! The Court grants a postponement until January 22nd, 2004 in order to study
the documents submitted in this case.
The official brief minutes of this session can be read here – page 1
Ř
November 27th, 2003 – The notary’s file containing the inheritance
documentation did not reach the Courthouse although was sent by the notary’s
whose office is about 400 meters from the Courthouse. Judge
Prohorov requests proof that the house was purchased (although the topic is
on the right to the inheritance??) The
trial is postponed until December 18th 2003. The official brief minutes of this
session can be read here – page 1
Ř
November 6th, 2003 – COMTIM’s lawyer Scrieciu claims that on our
inheritance certificates, stating that we are the heirs of our paternal
grandmother, the name of our father is missing.
The Court requests the notary’s file from the notary that did the
inheritance. The trial is postponed until November 27th, 2003. The official brief minutes can be read here –
page 1
and page 2.
Ř
October 23rd, 2003 – The
Ř
September 17th 2003 – The First
Court of Timisoara (Judecatoria) in the civil decision nr. 7436,
decision that is final and unappelable, concludes
that Ionas Klein and Eugen Klein are the same person. The decision in Romanian can be seen here: http://www.oocities.org/nationalizarea/nume1.jpg
http://www.oocities.org/nationalizarea/nume2.jpg
Ř
June 24th, 2003 –
Ř
June 13th, 2003 – The First
http://www.oocities.org/coruptiainromania/bihoi1.jpg
http://www.oocities.org/coruptiainromania/bihoi2.jpg
http://www.oocities.org/coruptiainromania/bihoi3.jpg
http://www.oocities.org/coruptiainromania/bihoi4.jpg
Explanatory note – the underlined
dates refer to contacts with the PricewaterhouseCoopers offices in the
·
December 1989 – the Romanian
"revolution"
·
1995 – the new law 112/1995
compensates the nationalized property owners with a capped amount. The return of the property is not possible.
·
June 1999 – COMTIM is forced into
bankruptcy
·
July 1999 – PWC takes over the judicial
liquidation procedure of COMTIM's assets
·
September 1999 – PWC publishes an add for the sale of my grandfather's house
·
September 1999 – we initiate a lawsuit against
the
·
January 2000 – a meeting is initiated by
PWC's representative, Radu Bufan, to find "an easy and expedient solution
to this trial" – no such solution was offered, but rather PWC's intent was
to size-up the opponent!
·
January 2000 – we win in the first court!
·
January 2000 – the
·
September 2000 – we lose the appeal! The judge ignores the fact that my
grandfather was a small business owner, exempt under the nationalization
decree, and "judges" that he was a "house exploiter"
(perceived a rent from tenants) renting 7 of his 9 apartments as proven by the
1950's documentation (reminder – the house had only 2 apartments of 3 rooms
each as it can be seen in the blue prints!).
In addition the same judge, Romulus Proks, assumes that my grandfather
agreed with the decision, as he didn't appeal it in 1955 (this is the post
Stalin era in a Communist country!)
·
October 2000 – we appeal this decision
·
January 2001 – the law 10/2001 (in Romanian)
is passed through the Parliament and signed by the Romanian President
·
March 2001 – PWC's lawyer initiates a second
contact with the promise of a mutually satisfactory solution to the
problem. This turned to be an
intimidation session. Mr. Bufan was
offering to sell the house through the liquidation procedure and split the
financial outcome. Upon my refusal to discuss
any such joint venture and being adamant about my request for the return of the
house he implied that he could tie me down for years to come in courts or he
could even sell just the judiciary right to the house which will make my goal
impossible (see the November 16th, 2001 entry).
·
March 2001 – the court action initiated in
September 1999 is suspended for the procedural alternative given by the law
10/2001
·
March 2001 – we send a notification for the
return of the house to
·
June 2001 – we send a second notification
to the COMTIM legal representative, PWC, as we were unofficially told by the
town hall's representative that it is not their competence to address our
request, but, as the law 10/2001 ambiguously states, to the current tenant that
the notification is to be addressed.
· June 2001
– letters describing the situation in
· August 2001 – With complete disregard for
the Law 10/2001, using ridiculous arguments, PricewaterhouseCoopers Romania,
as the named liquidator for COMTIM, through the authority of Emilian Radu (PricewaterhouseCoopers
Partner, Head of Corporate Finance & Recovery Services – biography can be seen here http://www.pwcglobal.com/ro/eng/about/press-rm/partners/),
refuses the restitution of the house although this is not allowed by the
above mentioned law. The main argument used is that the house needs to
be used in the liquidation process.
Original Romanian document can be
seen here http://www.oocities.org/pwcromania/raspPWC1.jpg
and http://www.oocities.org/pwcromania/raspPWC2.jpg
while its English translation was provided in my previous correspondence and
can be found on the main Web page.
· September 2001 – I reply to COMTIM, offering to
keep the current activity in the house and pointing out that their refusal
is illegal. No reply was ever received.
· At the same time, PwC
· 26 noiembrie 2001, following the publishing of the
advert we notified all the parties (Syndic Judge, COMTIM,
PricewaterhouseCoopers and Agrotorvis) about the illegality of this
transaction. The letter, in Romanian, to the Syndic Judge can be seen here http://www.oocities.org/pwcromania/sindic.jpg.
Following this notification, COMTIM’s lawyer, Mr. Scrieciu declared in Court
that this transaction will not take place; however no official reply was
received from COMTIM or PricewaterhouseCoopers.
· December 2nd, 2001 – urgent fax to the office of Mr. James J.
Schiro, the CEO of PricewaterhouseCoopers about PwC’s
· 13 decembrie 2001, as the Contract of Cession of Credit
proves dupa cum dovedeste Contractul de Cesiune de Creanta the same
PricewaterhouseCoopers Partner, Mr. Emilian Radu, sells the litigious rights
to the house for 80,000US$ (nota bene – the minimum estimated value of
the house is 500,000US$) to the same company S.C. Agrotorvis S.R.L.
(the English translation of the original Romanian document can be seen here http://www.oocities.org/pwcromania/cession.html
and the Romanian original here http://www.oocities.org/pwcromania/cr1.jpg
http://www.oocities.org/pwcromania/cr2.jpg
http://www.oocities.org/pwcromania/cr3.jpg
http://www.oocities.org/pwcromania/cr4.jpg)
The entire amount of this contract was to be paid in the COMTIM’s
liquidation account within 5 days from the date of the contract, December 13th,
2001. Through this same Contract, Agrotorvis will pay the litigation and
COMTIM’s lawyer’s fees in an effort to obtain the house.
· December 16th, 2001 – a
second fax was sent to Mr. James J. Schiro re-iterating the same
concerns as outlined in the first communication and requesting a confirmation
that the illegal sale of the judicial rights was aborted. No
acknowledgment or reply was ever received.
· After December 2001 – as PricewaterhouseCoopers
could not pay the maintenance of the house from the depleted funds of COMTIM,
the same PricewaterhouseCoopers Partner Emilian Radu, sublets the house
through an un-dated Protocol (the original Romanian document can be seen
here http://www.oocities.org/pwcromania/protocol.jpg
and the English translation here http://www.oocities.org/pwcromania/protocole.html
) to S.C. Agrotorvis S.R.L. and to S.C. Comtim Group S.R.L. specifying that
Agrotorvis is to use the second floor and the annex while COMTIM (in
liquidation) and SC Comtim Group SRL will use the rest of the house. The
utility and maintenance fees will be paid in exclusivity by S.C. Comtim Group
S.R.L.
Note – This sublet contract is
concluded until 2004 showing the confidence of PricewaterhouseCoopers in
maintaining the control over the house until that date.
·
September 6th, 2002 – I contacted
Mr. Ricciardi, US based attorney for PwC, and presented the current
situation in
·
December 18th, 2002 – the entire content of this site, at that time,
(here in Word format http://www.oocities.org/nationalizarea/press.doc)
exposing in detail the illegality of PwC Romania together with copies of
original documents supporting my accusations was sent trough courier to: Mr.
Samuel A. DiPiazza Jr. PwC’s Global CEO, Mr. Kieran Poynter, PwC’s UK Senior
Partner, Ms. Barbara Kipp, PwC’s Global Leader, Ethics and Business
Conduct. An acknowledgment message was received from Ms. Kipp.
· December 30th, 2002 – shortly
after I sent the documents to the Senior PwC Partner in UK and PwC’s CEO in the
US, I receive the conclusion of Mr. Vernon’s “professional
Investigation” (http://www.oocities.org/pwcromania/vernon.html).
As the Web statistics of the page containing my accusations and corroborating
documents prove, Mr. Vernon has not once accessed it being content with
providing me with the English translation of PwC
· January 19th, 2003 – I send
my analysis (http://www.oocities.org/pwcromania/vernon.html#jan19_e)of
Mr. Vernon’s reply to Mr. Vernon and I copy the following PricewaterhouseCoopers
Partners: Mr. Samuel A. DiPiazza Jr, Mr. Kieran Poynter, Ms. Barbara Kipp
and Mr. Ricciardi.
· January 31st, 2003 - I receive a reply from Mr. Vernon (http://www.oocities.org/pwcromania/vernon.html#jan31_v)following
my analysis of his investigation. Although “more than satisfied with the
work of the reviewers and the conclusions reached in the initial review”, Mr.
Vernon has decided to further ask for a review of my accusations made by
someone independent of PwC
· February 14th, 2003 – 20
months after we have made the restitution request as mandated by the Law
10/2001. Mrs. Speranta Munteanu, Director of the Liquidation Department in an
“offer for a quick resolution to the conflict” refers fro the first time in the
procedure based on the Law 10/2001 the need to provide proof that Eugen Klein
refers to the same person as Ionas Klein – an exception raised by COMTIM during
the first litigation in January 24th, 2001 and eventually dropped in
September 2000 by the same lawyer, Mr. Scrieciu (the corroborating documents
and the analysis of this situation can be seen here http://www.oocities.org/pwcromania/redherring.html).
In the same “offer”, PricewaterhouseCoopers
Romania, through Mrs. Speranta Munteanu claims that the house was modified into
an office building by COMTIM in 1979, although the same house was an office
building since 1967 and based on the previous argument, against the letter of
the Law 10/2001 requests compensation for those “modifications”.
· February 25th, 2003 – I receive
Mr. Vernon’s conclusion to the second investigation (http://www.oocities.org/pwcromania/vernon.html#feb25_v)done
by an “independent” reviewer. The conclusion, voided of any arguments or
references to my accusations, generically states that PwC Romania acted
properly in this matter. It further refers to the identified issues
by the reviewer as to the proof of my relationship to Eugen Klein and I quote
“has been advised by PwC Romania that it is up to you to prove to the
satisfaction of the relevant Court, not merely PwC Romania, that you are the
lawful heir of Eugen Klein” (nota bene – PwC Romania found this to be a problem
only on February 14th, 2003 although this issue was addressed since
January 2000!)
· February 26th, 2003 – I sent my detailed review of Mr. Vernon’s second
investigation (http://www.oocities.org/pwcromania/vernon.html#feb26_e)to
Ms. Kipp, PwC’s Global Ethics Leader pointing out that this second review, like
the first, ignores my supporting proof to the accusations against PwC Romania
and uses just generic statements to proclaim the propriety of PwC Romania’s
actions in this case.
·
March 4th, 2003 – Ms. Kipp endorses Mr. Vernon’s conclusion (http://www.oocities.org/pwcromania/vernon.html#mar4_k),
declaring the matter close. In reply to my accusations of impropriety of
the second investigation, Ms. Kipp declares: “It is
not our policy to share the details of any investigations with
complainants”. This matter is considered closed for PwC!
· July 3rd , 2003 – I sent a letter to Mrs. Speranta Munteanu,
containing the correct chronology of PwC Romania’s actions around the nationalized
house pointing out the fraud commited and requesting an immediate correction of
their illegal actions through the restitution of the house. I informed Mrs. Munteanu that if PwC does not
correct its position I will be forced to inform the Romanian authorities about
this fraud. No reply was received.
·
August 22nd, 2003 – I sent a fax to Mr.
Samuel DiPiazza Jr. Global CEO of PwC informing him of the fraud committed
by the PwC Romanian office and pointing out that PwC’s two internal
investigations came out with blank statements of professional conduct in
support of their Romanian colleagues.
After more than two years since I have contacted the main offices of PwC,
due to their disinterest in dealing with their Romanian problem, I am forced to
inform the Romanian authorities about the illegal act committed in the
liquidation of COMTIM.
Yet to be translated from
Romanian below
Argumente legale
pentru a releva neputinta (sau lipsa de dorinta) Aparatului Judiciar din
- Articolul 20 aliniatul 1 din Legea
10/2001, după cum arata Ioan Adam in lucrarea sa de specialitate – Legea
nr. 10/2001. Regimul juridic aplicabil imobilelor preluate abuziv - ediţia
a III-a, pagina 342, „statuează fara putinţa de tăgada ca
imobilele terenuri si construcţii desigur preluate abuziv, atenţie,
indiferent de destinaţie, deţinute de entităţile juridice
enumerate, care sunt acţionari majoritari, in mod obligatoriu vor face obiectul reparaţiei numai prin
restituire in natura. Observam ca aceste persoane juridice detinatoare
nu au alta posibilitate juridica decât aceea de a emite decizia de restituire
in natura…” Ioan Adam subliniază
inca o data, in acelaşi paragraf, menţionând ca aceasta
obligativitate „rezulta fara echivoc din redactarea textului de lege in mod
imperativ statuându-se „vor fi
restituite persoanei indreptatite in natura”.
Legea 10/2001 - art. 20 alin
1 „Imobilele - terenuri si
construcţii - preluate in mod abuziv, indiferent de destinaţie, care
sunt deţinute la data intrării in vigoare a prezentei legi de o regie
autonoma, o societate sau companie naţionala, o societate comerciala la
care statul sau o autoritate a administraţiei publice centrale sau locale
este acţionar ori asociat majoritar, de o organizaţie cooperatista
sau de orice alta persoana juridica, vor fi restituite persoanei indreptatite,
in natura, prin decizie sau, după caz, prin dispoziţie motivata a
organelor de conducere ale unitatii detinatoare.”
- in HG.-ul 498 din 2003 care conţine
normele metodologice de aplicare unitară a Legii nr.
10/2001 privind regimul juridic al unor imobile preluate în mod abuziv în
perioada 6 martie 1945-22 decembrie 1989 se precizează prin art. 20
alin (1) înlăturarea imobilelor revendicate de la prevederile Legii nr.
64/1995, indisponibilizare ce operează începând cu data de 14 februarie
2001 (a se vedea mai jos). In acelaşi articol se statuează, din nou, obligativitatea
restituirii in natura in cazul in care unitatea detinatoare este o societate
comerciala in care statul este acţionar (
“ 20.1. Prevederea
alin. (1) al art. 20 din lege are semnificaţii juridice multiple, respectiv:
- statuează
indisponibilizarea imobilelor restituibile pe calea prevăzută de lege cu
privire la orice alte proceduri legale care tind să înstrăineze imobilul
respectiv către alte persoane, altele decât cele îndreptătite potrivit legii;
ca atare, sunt înlăturate de la aplicare cu privire la aceste bunuri
prevederile Legii nr. 64/1995 sau ale Legii nr. 213/1998, cu completările
ulterioare;
-
indisponibilizarea respectivă operează începând cu data de 14 februarie 2001
chiar dacă notificarea a fost făcută la o dată ulterioară;
-
indisponibilizarea acestor bunuri are drept scop primordial îndeplinirea
obligaţiei de restituire în natură către adevăratul proprietar;
- restituirea în natură este obligatorie în cazul în care unitatea
detinătoare este regie autonomă, societate sau companie natională, societate
comercială la care statul sau o autoritate a administraţiei publice
centrale ori locale este acţionar (S.A.) sau asociat (S.R.L.) majoritar
ori de către o organizaţie cooperatistă sau de orice altă persoană
juridică (orice altă persoană juridică
vizează si acele entităti de drept public - ministere, prefecturi,
Agentia Domeniilor Statului si altele asemenea); ”
- in acelaşi HG 498 din 2003 in art. 1 pct. f) se statuează din
nou in felul următor – masurile reparatorii prevăzute de lege
prevalează asupra altor proceduri care tind sa înlăture de la
restituirea in natura bunuri care fac obiectul acestuia – imobilele preluate in
mod abuziv nu pot intra in averea debitorului in cazul declanşării
procedurii falimentului
Art. 1 punctul
f) prevederile legii au caracter de complinire în raport cu alte acte
normative reparatorii speciale anterioare si, în măsura în care acestea din
urmă conţin alte măsuri, prevederile legii se aplică cu prioritate în
raport cu respectivele măsuri. De asemenea, măsurile reparatorii prevăzute de
lege prevalează asupra altor proceduri care tind să înlăture de la restituirea
în natură bunuri care fac obiectul acesteia (de exemplu: începând cu data
intrării în vigoare a legii, imobilele preluate în mod abuziv nu pot intra în
averea debitorului în cazul declansării procedurii falimentului, potrivit
prevederilor Legii nr. 64/1995 privind procedura reorganizării judiciare si a
falimentului, republicată, cu modificările si completările ulterioare;
indisponibilizările generate de calificarea regimului de proprietate prin
actele subsidiare emise în temeiul Legii nr. 213/1998 privind proprietatea
publică si regimul juridic al acesteia, cu completările ulterioare, se
menţin numai în măsura în care acestea fac obiectul procedurii prevăzute
de art. 16 din lege).
-
citam
din lucrarea lui Ioan Adam – Legea nr. 10/2001. Regimul juridic aplicabil
imobilelor preluate abuziv - ediţia a III-a, paginile 342 si 343 in care
autorul se refera la dispoziţiile legii 10/2001 si HG-ului 498/2003 de
indisponibilizare a imobilelor revendicat analizând in mod precis o
situaţie identica cu cazul de fata:
„Indisponibilizarea
priveşte orice operaţiune juridica care sa vizeze dreptul de
dispoziţie juridica asupra imobilului, cat si aplicarea unor prevederi din
legi speciale, cum ar fi cele ale Legii nr. 64/1995 referitoare la procedura
falimentului sau ale Legii nr. 213/1998, privind proprietatea publica. Daca, de exemplu, societatea comerciala care
are acţionar majoritar statul sau o autoritate a administraţiei
publice locale sau centrale, este supusa procedurii lichidării judiciare,
imobilul a cărui restituire este solicitata de persoana indreptatita nu va
intra in compunerea masei credale tocmai pentru ca prin lege este indisponibilizat
la dispoziţia acesteia.
Aşadar, este fara
echivoc ca persoana indreptatita intr-o astfel de situaţie nu are decât
posibilitatea formulării unei cereri de restituire in natura, iar persoana
detinatoare nu are alta varianta decât cea a restituirii in natura a
imobilului, neavând posibilitatea sa aprecieze asupra oportunităţii
restituirii in natura si sa propună reparaţia prin echivalent.”
-
Din legea 10/2001 art. 18 din care alin. c
este citat de catre COMTIM ca motiv pentru care a fost refuzata restituirea in
natura a imobilului
Art. 18. - Masurile reparatorii se stabilesc numai
in echivalent si in urmatoarele cazuri:
a) persoana
indreptatita era asociat la persoana juridica proprietara a imobilelor si a
activelor la data preluarii acestora in mod abuziv, cu exceptia cazului in care
persoana indreptatita era unic asociat sau persoanele indreptatite asociate
erau membri ai aceleiasi familii;
b) imobilul nu
mai exista la data intrarii in vigoare a prezentei legi, cu exceptia imobilelor
distruse ca urmare a unor calamitati naturale;
c) imobilul a fost transformat, astfel
incat a devenit un imobil nou in raport cu cel preluat, daca partile nu au
convenit altfel;
- HG-ul 498/2003 aduce precizari art 18 si esential pentru cazul de fata, o definitie prin care se poate evalua deca imobilul dupa transformare poate fi considerat nou in raport cu cel preluat. De asemenea se precizeaza modificarile ce nu pot fi considerat in evaluarea unui imobil nou in raport cu cel preluat
18.3. Imobil nou în raport cu cel preluat este considerat acea constructie care,
prin transformările survenite, are următoarele caracteristici:
- în raport cu forma initială i s-au adăugat corpuri
de zidărie sau volume din alte materiale, ce reprezintă peste 50% din suprafata
construită initial (etajări sau/si adăugări de corpuri noi pe orizontală);
- prin modificările aduse a rezultat o
constructie destinată să deservească o activitate specifică (de exemplu, s-a
amenajat ca sediu de bancă cu seifuri încorporate; s-a amenajat ca spital sau
sanatoriu cu spatii si dotări medicale specifice; s-au efectuat lucrări
subterane cu destinatie militară ori pentru siguranta natională si altele
asemenea).
18.4. Nu
constituie imobil nou în raport cu cel preluat acea constructie căreia i s-a
modificat compartimentarea initială - din spatii de locuit în birouri si invers
-, i s-au adus numai îmbunătătiri functiooonale (racordări de gaze, termoficare,
consolidări sau alte lucrări de întretinere curentă, consolidări si altele
asemenea).
Why is this case a case of CORRUPTION?
PwC, as the
liquidator of COMTIM, by law represents the in calitatea sa de lichidator al
COMTIM-ului, reprezinta organul de conducere al acestuia si in acest fel intra
sub incidenta art.1 alin b al legii
78 bis din 2000, lege ce are ca obiect prevenirerea, descoperirea si
sanctionarea faptelor de coruptie. Potrivit acestei legi, prin art. 10 alin.
a, „stabilirea
cu intentie, a unei valori diminuate, faţă de
valoarea comercială reală, a bunurilor aparţinând agenţilor
economici la care statul sau o autoritate a administraţiei publice locale
este acţionar, comisă în cadrul acţiunii de privatizare sau cu
ocazia unei tranzacţii comerciale, ori a bunurilor aparţinând
autorităţilor publice sau instituţiilor publice, în cadrul unei
acţiuni de vânzare a acestora, săvârşită de cei care au atribuţii
de conducere, de administrare sau de gestionare” reprezinta
o infractiune asimilata cu infractiunea de coruptie si se pedepseste cu
inchisoare de la 5 la 15 ani.
Refuzul ilegal de
restituire al imobilului, semnat in numele PwC-ului de catre Emilian Radu, a
fost primul pas in realizarea tranzactiei de vânzare a acestuia catre Agrotorvis SRL contra sumei de
80,000US$, valoare mult diminuata fata de valoarea comerciala reala a acestuia
(estimata la 700,000US$).
Astfel PwC-ul si
persoanele implicate in aceasta tranzactie intra sub incidenta legii
anticoruptie 78 bis din 2000, incalcand in acelasi timp si prevederile legii
10/2001 si HG-ului 498/2003, prin:
Aceste incalcari ale legii 10/2001 au fost aduse
la cunostinta instantei (4 martie 2003) in cadrul procesului de revendicare al
imobilului dupa legea 10/2001 fara nici un fel de rezultat.
