JURIDICAL PROTECTION OF FEATURES
In the last 19 years, Romania has lost as much forest area as other countries have lost during the entire last century. Such a sudden and catastrophic loss has highlighted the imperative need to protect what is left of the forests through a combined effort, which takes into account the protection of biodiversity, the reconstruction of existing forests, the effective prevention of forest fires, and the regulation of logging.
Until recently, the obligation to comply with laws designed to protect Romanian forests was more avoided or ignored than implemented and respected. This was due on the one hand to the poor who in the winter months depend on illegally cut wood and on the other hand to those who, because of greed, simply chose to ignore the law and the serious effects of uncontrolled deforestation.
In March 2008, the Romanian Parliament adopted by Law 46/2008 a new Forestry Code (hereinafter referred to as the "Silvic Code"). Since the previous law was amended countless times, and the confusion created by these changes itself led to numerous acts of deforestation, Parliament had to rethink a new Forestry Code. This new Forestry Code embodies the Government's desire to prevent uncontrolled deforestation, to make the public aware of the danger of deforestation and to implement a better crafty and more comprehensible law.
Ownership of forests in Romania
The Forest Code stipulates that forests can be subject to both public and private property, but whatever the form of ownership, forests are of national interest, thus falling within the sphere of protection of the state and not of local authorities. The law allows forest owners, who are private persons, to use them, sell them or alienate them, but only in compliance with the provisions of the Forestry Code, which limits the exercise of ownership and expressly prohibits any construction on the forest background.
Forests that are publicly owned by the state are managed by the National Forest Administration – ROMSILVA (hereinafter ROMSILVA) which operates under the authority of the Ministry of Agriculture and Rural Development. Forests that are public property of administrative-territorial units are managed by private forestry schools.
The Forestry Code provides that forests subject to private property may not be divided into lots of less than 1 hectare. This limitation applies to both inter vivos and mortis causa alienations. If, however, by the succession procedure the property should be divided into lots of less than one hectare, then the inheritance will be constituted in favour of one or more successors up to the legal minimum limit ( 1 hectare) and, in return, the beneficiary or beneficiaries will have to pay the other heirs a spear. The amount paid in compensation may be derived either from the division of the entire inheritance or from the beneficiary's own funds.
Obligations of private owners
As mentioned above, the provisions of the law require that forests be placed under special administration. This obligation incumba the holders of the right of property, both public and private, over forests. According to the Forestry Code, privately owned forest management is carried out through private forestry schools, which operate legally in the same way as associations and foundations. For this, owners – private persons can organize such forestry schools themselves or they can turn to such entities already created. Forestry schools can operate either independently or on a contract basis with other larger schools and benefit from more resources. By creating or adhering to such entities, owners – private persons fulfill their obligations under the Forestry Code regarding the provision of administration and specialized services related to forest maintenance.
As mentioned above, the provisions of the law require that forests be placed under special administration. This obligation incumba the holders of the right of property, both public and private, over forests. According to the Forestry Code, privately owned forest management is carried out through private forestry schools, which operate legally in the same way as associations and foundations. For this, owners – private persons can organize such forestry schools themselves or they can turn to such entities already created. Forestry schools can operate either independently or on a contract basis with other larger schools and benefit from more resources. By creating or adhering to such entities, owners – private persons fulfill their obligations under the Forestry Code regarding the provision of administration and specialized services related to forest maintenance.
Forest owners, public or private property, have the following obligations regarding their properties: to ensure the preparation and observance of forest facilities, to ensure the protection and integrity of the forest fund, to carry out forest regeneration works, to carry out forest works when necessary, to take care of the fight against diseases and forest pests, to ensure compliance with fire prevention and extinguishing measures , to legally exploit the wood, to ensure the maintenance and repair of the forest roads they own or manage, to delimit their forest property. Owners must ensure the protection of the forest against illegal deforestation, storms, other forms of destruction, degradation and against any other activities of a nature of damage to the forest. Moreover, owners are obliged to notify ROMSILVA within 60 days of any alienation of the forest fund. All these obligations fall to the authorized forestry schools.
If the owner does not comply with the obligation to handle the regeneration of the forest, this activity will be carried out by the competent authorities at the owner's expense.
In accordance with the provisions of the Forestry Code, the Romanian state is not only interested in protecting the forest fund, but also in purchasing other forested land. Although state policy is characterized by a substantial interest in buying new forest land, its implementation depends on the administrator of publicly owned forests. For privately owned forests that are landed in public lye or border forests, the state has a right of pre-approval when purchasing them if they are put up for sale, at the price and on equal terms. The seller is obliged to notify the forest fund manager in writing of his intention to sell his forest property. The State may express its right of pre-emption within 30 days of receiving the notification. Violation of this obligation leads to the cancellation by law of the contract of sale-purchase thus concluded. If the administrator of the forest public property does not express in writing within 30 days his intention to purchase the land, then the sale can be made without any restrictions.
As a consequence of the special importance that Romania attaches to the forest fund, the Forestry Code provides that any activity or all activities of a nature to harm the forest fund are considered crimes.
Operating rights
As far as logging is concerned, the owner must comply with the special provisions relating to the exploitation of wood and the kinegetic fund. Deforestation can only be carried out after obtaining a special authorization for this purpose. Wood can only be exploited by companies certified and authorized for carrying out the activities of cutting and transporting wood. Private owners can operate on their own the forests they own up to the maximum limit of 20 cubic meters per year. They can also freely exploit trees that have been accidentally removed from their roots or that have been illegally felled. The rest of the trees must be marked for cutting by the competent authorities to exploit them. The hunting of forest fund animals is also subject to limiting conditions.
As a consequence of the special importance that Romania attaches to the forest fund, the Forestry Code provides that any activity or all activities of a nature to harm the forest fund are considered crimes.
Operating rights
As far as logging is concerned, the owner must comply with the special provisions relating to the exploitation of wood and the kinegetic fund. Deforestation can only be carried out after obtaining a special authorization for this purpose. Wood can only be exploited by companies certified and authorized for carrying out the activities of cutting and transporting wood. Private owners can operate on their own the forests they own up to the maximum limit of 20 cubic meters per year. They can also freely exploit trees that have been accidentally removed from their roots or that have been illegally felled. The rest of the trees must be marked for cutting by the competent authorities to exploit them. The hunting of forest fund animals is also subject to limiting conditions.
Deforestation
The Forestry Code prohibits any forest that is publicly owned by the state from becoming private property or from being the subject of any dismemberment of the property right. The Forestry Code states that the size of the national forest fund cannot be reduced. According to Article 36 of the Forestry Code, there is only one exception to this rule – the achievement of the objectives of national interest, declared of public utility according to the law. In such a situation, two methods of compensation can be chosen: by providing an area of land equivalent to substitute for land removed from the forest fund or by paying for the use of forest land.
The Forest Code (art. 37 ) provides for certain situations in which forests can be permanently removed from the forest fund without national reduction of the forested area. These are the following:
• Exploitation of natural resources: coal, stone, mineral aggregates, ores and mineral waters
• Tourist objectives – tourist accommodation, cult units, social and medical objectives, hydrotechnical constructions, drinking water sources
• Housing or holiday homes – this situation is specific only for privately owned forests and only if the following conditions are respected: both the land and the construction must be the property of the same person and the maximum area (including construction, access routes and enclosure) does not exceed more than 5% of the total area of the private forest, but not more than 200 square meters
• Forest objectives installed before 1990 which are included in the forestry facilities in force on 1 January 1990, under the category "occupations and disputes".
• Exploitation of natural resources: coal, stone, mineral aggregates, ores and mineral waters
• Tourist objectives – tourist accommodation, cult units, social and medical objectives, hydrotechnical constructions, drinking water sources
• Housing or holiday homes – this situation is specific only for privately owned forests and only if the following conditions are respected: both the land and the construction must be the property of the same person and the maximum area (including construction, access routes and enclosure) does not exceed more than 5% of the total area of the private forest, but not more than 200 square meters
• Forest objectives installed before 1990 which are included in the forestry facilities in force on 1 January 1990, under the category "occupations and disputes".
Compensation for deforestation is intended to be made with other land and not in money. The compensation provided for by the Forestry Code is physically realized with a land that has five times the value of that which is permanently removed from the forest fund, and the area of the land given in compensation may not be less than 33% of the area of the land removed from the forest fund. Moreover, the land given in compensation must come from outside the forest fund and border it. Compensation can also be made with land that is not bordering the forests. But for such an operation it is necessary that the land given in compensation have a compact area of at least 20 hectares. At the same time, this land must be fit for foresting. This method of compensation for land removed from the forest fund allows the authorities, in principle, to overcome the difficulties that may arise when they purchase forested land or to check whether these lands are sufficiently forested.
In addition to the above mentioned conditions, the land given in compensation must meet other conditions such as:
• Lands given in compensation must be entered in forestry facilities and be provided with forestry administration or services within 30 days from the date of approval of the final removal from the forest fund. Moreover, the land given in compensation must be forested in a maximum of two seasons of vegetation
• In counties where forests stretch over less than 16% of their total area, compensation should be made with land from the same county. The purpose of such a condition is obvious: it is intended to protect the forest fund of each county and also the percentage of forested land within it.
• Lands given in compensation must be entered in forestry facilities and be provided with forestry administration or services within 30 days from the date of approval of the final removal from the forest fund. Moreover, the land given in compensation must be forested in a maximum of two seasons of vegetation
• In counties where forests stretch over less than 16% of their total area, compensation should be made with land from the same county. The purpose of such a condition is obvious: it is intended to protect the forest fund of each county and also the percentage of forested land within it.
One of the most important consequences of the forestism is that the land permanently removed from the forest fund falls into the property of the beneficiary and acquires the destination which he has requested and which has been approved to him (art. 38 of the Forestry Code). The land given in compensation acquires the legal regime of the land that it has replaced in the forest fund. Not all land in Romania can be used for compensation. For example, land that is part of the border line protection and maintenance zone cannot be compensated.
As mentioned, land can be removed from the forest fund for purposes that must be expressly within the categories mentioned above. With regard to the change of the destination of the objective built on the land removed from the forest fund, however, the Forestry Code also states a ban for a period of five years from the time it was approved. Thus, if a beneficiary, after removing the land from the forest fund, does not use it for the purpose for which the authorities allowed him to clear, he will bear the automatic repeal of the minister's order or the Government's decision to approve the removal of that lot from the forest fund. The land will be brought to the initial state of afforestation at the expense of the beneficiary of the approval.
Persons interested in removing land from the forest fund also have monetary obligations consisting of:
• Fee for the permanent removal of land from the forest fund
• Market price consideration for land
• The value of the growth loss caused by the exploitation of wood before the age of technical exploitation, i.e. the difference in value between the amounts that would have been obtained if the wood had been exploited in maturity and what was obtained by exploitation at that time and at that stage of growth
• The value of the decommissioned objectives that could be on the land
• Costs of installing forest vegetation and maintaining it until maturity.
• Fee for the permanent removal of land from the forest fund
• Market price consideration for land
• The value of the growth loss caused by the exploitation of wood before the age of technical exploitation, i.e. the difference in value between the amounts that would have been obtained if the wood had been exploited in maturity and what was obtained by exploitation at that time and at that stage of growth
• The value of the decommissioned objectives that could be on the land
• Costs of installing forest vegetation and maintaining it until maturity.
All financial obligations must be paid by the time of the request and the start of the necessary procedures for the removal of the land from the national forest fund.
In addition to the procedure of removing from the forest fund an area of land by compensating it, interested persons also have the possibility of occupying a forest land for a predetermined period of time, land which is necessary for a certain purpose, but which does not exceed 10 years. For the occupied forest land, the occupant must pay a rent to the administrator or its owner. The rent is paid on January 31st for the year in which it is due and is calculated according to the legal provisions in force on January 1st. In addition, for land temporarily removed from the forest fund, according to the Forestry Code, the occupant must pay a number of monetary obligations. All these obligations must be paid in advance to surrender-receiving the land removed from the forest fund.
In addition to the procedure of removing from the forest fund an area of land by compensating it, interested persons also have the possibility of occupying a forest land for a predetermined period of time, land which is necessary for a certain purpose, but which does not exceed 10 years. For the occupied forest land, the occupant must pay a rent to the administrator or its owner. The rent is paid on January 31st for the year in which it is due and is calculated according to the legal provisions in force on January 1st. In addition, for land temporarily removed from the forest fund, according to the Forestry Code, the occupant must pay a number of monetary obligations. All these obligations must be paid in advance to surrender-receiving the land removed from the forest fund.
Another situation involving the temporary occupation of forest land is that, due to the complexity of the purpose for which a land was requested to be permanently removed from the forest fund, it is also necessary to temporarily occupy the forested areas in its vicinity. This temporary occupation for the organization of the site is possible for a maximum of 1 year and may not exceed more than 10% of the area requested to be permanently removed from the forest fund. The person who requests both the permanent and temporary removal of land from the forest fund is entitled only to the receipt of the land. The wood must be returned either to the owner or to the manager in the case of publicly owned forests.
Conclusions
Conclusions
Perhaps the protection of Romania's forests could be better achieved by a simpler, more to the point and less bureaucratic law than the new Forestry Code. At the moment there is only one normative act that generates confusion, instead of a Forest Code with numerous modifications, with infringing procedures, which were violated rather than respected. However, the adoption of the new Forestry Code represents a major step for the protection of one of Romania's most precious riches – its forests. It remains to be seen whether the hope that the new Forest Code will be strictly implemented will become a reality.
A material by ABRUDAN ROMINA LAVINIA
The Transylvania House of Expertise has real competences in order to provide the following types of services for the protection and conservation of forests: Silvice facilities; Real Estate/Heritage Assessment of the Forest; Silvice Judicial Expertise; Forest management.
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