Communication No. 643/1995**
Submitted by: Peter Drobek [represented by the Kingsford
Legal Centre, Australia]
Victim: The author
State party: Slovakia
Date of communication: 31 May 1994 (initial submission)
The Human Rights Committee, established under article
28 of the International Covenant on Civil and Political Rights,
Meeting on 14 July 1997,
Adopts the following:
Decision on admissibility
1. The author of the communication, dated 31 May 1994, is
Peter Drobek, an Australian citizen, born in Bratislava. He claims to be
the victim of violations by Slovakia of articles 2, 17 and 26 of the International
Covenant on Civil and Political Rights. The Optional Protocol entered into
force for Czechoslovakia on 12 June 1991. After the dissolution of the Czech
and Slovak Federal Republic, Slovakia notified its succession to the Covenant
and to the Optional Protocol effective the first day of the new Republic,
1 January 1993. The author is represented by counsel.
The facts as submitted by the author
2.1 The author would have inherited from his father and his
uncle certain properties in Bratislava which were expropriated pursuant
to the Benes Decrees Nos. 12 and 108 of 1945 under which all properties
owned by ethnic Germans were confiscated. In 1948, the Communist regime
expropriated all private property used to generate income. After the fall
of the communist regime, the Czech and Slovak Federal Republic enacted Law
87/1991, See Committee's Views on communication No. 516/1992
(Simunek et al. v. Czech Republic), adopted 19 July 1995, and No.
586/1994 (Adam v. Czech Republic), adopted 23 July 1996. and after
the creation of the State of Slovakia, the Slovakian Government instituted
a policy whereby property taken under the Communist regime could be reclaimed.
However, the restitution legislation did not cover confiscation effected
under the Benes decrees.
2.2 The author tried to avail himself of the restitution legislation
and sought the return of his properties. On 25 May 1993, the local Court
of Bratislava dismissed his claims. Counsel claims that the Court does not
address the issue of discrimination and the racial injustice the author
has suffered. In this respect, he claims that, as there are no effective
domestic remedies available to him to obtain redress for the racial discrimination
suffered, domestic remedies have been exhausted.
3.1 The author claims to be the victim of a violation of articles
2 and 26 of the Covenant by the Slovak Government, because it has endorsed
the ethnic discrimination committed before the Covenant existed by enacting
a law which grants relief to those who had their lands expropriated for
reasons of economic ideology and does not provide it to those expropriated
on ethnic grounds. Counsel claims that article 2 of the Covenant in conjunction
with the preamble are to be interpreted to mean that the rights contained
in the Covenant derive from the inherent dignity of the human person and
that the breach committed prior to the entry into force of the Covenant
has been repeated by the enactment of discriminatory legislation in 1991
and by the decisions of the Slovak Courts of 1993 and 1995.
3.2 The author claims that there is a violation of article
17 as his family were treated as criminals, their honour and reputation
being badly damaged. In this respect, the author claims that until the Slovak
Government rehabilitates them and returns their property, the Government
will continue to be in breach of the Covenant.
State party's observations and author comments thereon
4. On 11 August 1995, the communication was transmitted to
the State party under rule 91 of the Committee's rules of procedure. No
submission under rule 91 was received from the State party, despite a reminder
addressed to it on 20 August 1996.
5.1 By a letter of 10 August 1995, counsel informed the Committee
that domestic remedies had been exhausted in respect of the author's property
claim and that the City Court Session, on 9 February 1995, had rejected
the author's appeal to the judgement of the Local Court, in Bratislava.
The author provides the text of the decision in Slovak and an English
translation. There had never been any remedies available in respect of the
author's discrimination claim.
5.2 By a further letter of 23 July 1996, counsel claims that
Slovak authorities discriminate against individuals of German origin.
6.1 Before considering any claims contained in a communication,
the Human Rights Committee must, in accordance with rule 87 of its rules
of procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant. The Committee notes with regret the State party's
failure to provide information and observations on the question of the admissibility
of the communication.
6.2 The Committee notes that the challenged law entered into
force for the territory of Slovakia in 1991, when that country was still
part of the Czech and Slovak Federal Republic, that is, before Slovakia's
succession to the Covenant and the Optional Protocol in January 1993. Considering,
however, that Slovakia continued to apply the provisions of the 1991 law
after January 1993, the communication is not inadmissible ratione temporis.
6.3 Although the author's claim relates to property rights,
which are not as such protected by the Covenant, he contends that the 1991
law violates his rights under articles 2 and 26 of the Covenant in that
it applies only to individuals whose property was confiscated after 1948
and thus excludes from compensation in respect of property taken from ethnic
Germans by a 1945 decree of the pre-Communist regime. The Committee has
already had occasion to hold that laws relating to property rights may violate
articles 2 and 26 of the Covenant if they are discriminatory in character.
The question the Committee must therefore resolve in the instant case is
whether the 1991 law applied to the claimant falls into this category.
6.4 In its views on communication 516/1992 (Simunek v.
Czech Republic), the Committee held that the 1991 law violated the Covenant
because it excluded from its application individuals whose property was
confiscated after 1948 simply because they were not nationals or residents
of the country after the fall of the Communist regime in 1989. The instant
case differs from the views in the above case, in that the author in the
present case does not allege discriminatory treatment in respect of confiscation
of property after 1948. Instead, he contends that the 1991 law is discriminatory
because it does not also compensate victims of the 1945 seizures decreed
by the pre-Communist regime.
6.5 The Committee has consistently held that not every distinction
or differentiation in treatment amounts to discrimination within the meaning
of articles 2 and 26. The Committee considers that, in the present case,
legislation adopted after the fall of the Communist regime in Czechoslovakia
to compensate the victims of that regime does not appear to be prima facie
discriminatory within the meaning of article 26 merely because, as the author
contends, it does not compensate the victims of injustices allegedly committed
by earlier regimes. The author has failed to substantiate such a claim with
regard to articles 2 and 26.
6.6 The author has claimed that Slovakia violated article
17 of the International Covenant on Civil and Political Rights by not rectifying
the alleged criminalization of his family by the Slovak authorities. The
Committee considers that the author has failed to substantiate this particular
7. The Human Rights Committee therefore decides:
(a) the communication is inadmissible under article 2 of
the Optional Protocol;
(b) that this decision shall be communicated to the State
party, to the author and to his counsel.
* The following members of the Committee participated
in the examination of the present communication: Mr. Nisuke Ando, Mr. Prafullachandra
N. Bhagwati, Mr. Thomas Buergenthal, Ms. Christine Chanet, Lord Colville,
Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Eckart Klein, Mr. David
Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar, Mr. Martin Scheinin,
Mr. Danilo Türk and Mr. Maxwell Yalden.
** The text of an individual opinion by Committee members
Cecilia Medina Quiroga and Eckart Klein is appended to the present document.
[Adopted in English, French and Spanish, the English text
being the original version. Subsequently to be issued also in Arabic, Chinese
and Russian as part of the Committee's annual report to the General Assembly.]
Individual opinion by Committee members
Cecilia Medina Quiroga and Eckart Klein
The author of the communication contends that the State party
discriminated against him by enacting Law 87/1991, which grants relief to
individuals whose lands were confiscated by the communist regime and which
does not grant it to those of German origin whose lands were confiscated
under the Benes Decrees.
The Committee has declared this communication inadmissible
for lack of substantiation of the author's claim. We do not agree with this
decision. The author has given clear reasons why he thinks he is being discriminated
against by the State party: this is not only because of the fact that Law
87/1991 applies only to property seized under the communist regime and not
to the 1945 seizures decreed between 1945 and 1948 by the pre-communist
regime; the author argues that the enactment of Law 87/1991 reflects the
support by Slovakia of discrimination which individuals of German origin
suffered immediately after the Second World War. He further adds that such
discrimination on the part of the Slovak authorities continues until the
present day (paragraphs 3.1 and 5.2). Since article 26 of the Covenant must
be respected by all State party authorities, legislative acts also have
to meet its requirements; accordingly, a law which is discriminatory for
any of the reasons set out in article 26 would violate the Covenant.
The State party has not responded to the author's allegations.
A claim of discrimination that raises an issue of substance - not disputed
at the admissibility stage by the State party - requires consideration on
the merits. We therefore conclude that this communication should have been
Cecilia Medina Quiroga [signed]
Eckart Klein [signed]