Communication No. 747/1997
Submitted by: Dr. Karel
Des Fours Walderode (deceased in February 2000) and his surviving spouse
Dr. Johanna Kammerlander (counsel)
Alleged victims: The author and his surviving spouse
State Party: The Czech Republic
Date of Communication:
21 November 1996
The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 30 October 2001,
Having concluded its consideration
of communication No. 747/1997, submitted to the Human Rights Committee
by the late Dr. Karel Des Fours Walderode and Dr. Johanna Kammerlander
under the Optional Protocol to the International Covenant on Civil and
Political Rights,
Having taken into account
all written information made available to it by the author of the communication
and by the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The original author of the communication was Dr. Karel Des Fours Walderode,
a citizen of the Czech Republic and Austria, residing in Prague, Czech Republic.
He was represented by his spouse, Dr. Johanna Kammerlander, as counsel.
He claimed to be a victim of violations of article 14, paragraph 1, and
article 26 of the International Covenant on Civil and Political Rights by
the Czech Republic. The Covenant was ratified by Czechoslovakia in December
1975, the Optional Protocol in March 1991. (1) The author passed
away on 6 February 2000, and his surviving spouse maintains the communication
before the Committee.
The facts as submitted
2.1 Dr. Des Fours Walderode
was born a citizen of the Austrian-Hungarian empire on 4 May 1904 in Vienna,
of French and German descent. His family had been established in Bohemia
since the seventeenth century. At the end of the First World War in 1918,
he was a resident of Bohemia, a kingdom in the former empire, and became
a citizen of the newly created Czechoslovak State. In 1939, because of
his German mother tongue, he automatically became a German citizen by
virtue of Hitler's decree of 16 March 1939, establishing the Protectorate
of Bohemia and Moravia. On 5 March 1941, the author's father died and
he inherited the Hruby Rohozec estate.
2.2 At the end of the Second
World War, on 6 August 1945, his estate was confiscated under Benes Decree
12/1945, pursuant to which the landed properties of German and Magyar
private persons were confiscated without any compensation. However, on
account of his proven loyalty to Czechoslovakia during the period of Nazi
occupation, he retained his Czechoslovak citizenship, pursuant to paragraph
2 of Constitutional Decree 33/1945. Subsequently, after a Communist government
came to power in 1948, he was forced to leave Czechoslovakia in 1949 for
political and economic reasons. In 1991, after the "velvet
revolution" of 1989, he again took up permanent residence in Prague.
On 16 April 1991 the Czech Ministry of Interior informed him that he was
still a Czech citizen. Nevertheless, Czech citizenship was again conferred
on him by the Ministry on 20 August 1992, apparently after a document
was found showing that he had lost his citizenship in 1949, when he left
the country.
2.3 On 15 April 1992, Law
243/1992 came into force. The law provides for restitution of agricultural
and forest property confiscated under Decree 12/1945. To be eligible for
restitution, a claimant had to have Czech citizenship under Decree 33/1945
(or under Law 245/1948, 194/1949 or 34/1953), permanent residence in the
Czech Republic, having been loyal to the Czechoslovak Republic during
the period of German occupation, and to have Czech citizenship at the
time of submitting a claim for restitution. The author filed a claim for
restitution of the Hruby Rohozec estate within the prescribed time limit
and on 24 November 1992 concluded a restitution contract with the then
owners, which was approved by the Land Office on 10 March 1993 (PU-R 806/93).
The appeal by the town of Turnov was rejected by the Central Land Office
by decision 1391/93-50 of 30 July 1993. Consequently, on 29 September
1993 the author took possession of his lands.
2.4 The author alleges State
interference with the judiciary and consistent pressure on administrative
authorities and cites in substantiation from a letter dated 29 April 1993
by the then Czech Prime Minister Vaclav Klaus, addressed to party authorities
in Semily and to the relevant Ministries, enclosing a legal opinion according
to which the restitution of property confiscated before 25 February 1948
was "legal", but nevertheless "unacceptable". The
author states that this political statement was subsequently used in court
proceedings. The author further states that, because of increasing political
pressure at the end of 1993 the Ministry of Interior reopened the issue
of his citizenship. Furthermore, the former owners of the land were persuaded
to withdraw their consent to the restitution to which they had previously
agreed.
2.5 On 22 December 1994 the
Public Prosecutor's Office in the Semily District filed an application
with the District Court under paragraph 42 of Law 283/1993 to declare
the Land Office's decision of 10 March 1993 null and void. On 29 December
1994, the District Court rejected this application. On appeal, the matter
was referred back to the first instance.
2.6 On 7 August 1995, a "citizens' initiative" petitioned revision
of the Semily Land Office's decision of 10 March 1993. On 17 October 1995,
the Central Land Office examined the legality of the decision and rejected
the request for revision. Nevertheless, on 2 November 1995 the author
was informed by the Central Land Office that it would, after all, begin
to revise the decision. On 23 November 1995, the Minister of Agriculture
annulled the Semily Land Office decision of 10 March 1993, purportedly
because of doubts as to whether the author fulfilled the requirement of
permanent residence, and referred the matter back. On 22 January 1996,
the author applied to the High Court in Prague against the Minister's
decision.
2.7 On 9 February 1996, Law
243/1992 was amended. The condition of permanent residence was removed
(following the judgement of the Constitutional Court of 12 December 1995,
holding the residence requirement to be unconstitutional), but a new condition
was added, of uninterrupted Czechoslovak/Czech citizenship from the end
of the war until 1 January 1990. The author claims that this law specifically
targeted him and submits evidence of the use of the term "Lex Walderode"
by the Czech media and public authorities. On 3 March 1996 the Semily
Land Office applied the amended Law to his case to invalidate the restitution
agreement of 24 November 1992, since Dr. Des Fours did not fulfil the
new eligibility requirement of continuous citizenship. On 4 April 1996,
the author lodged an appeal with the Prague City Court against the Land
Office's decision.
2.8 As regards the exhaustion
of domestic remedies, the late author contended that the proceedings were
being deliberately drawn out because of his age and, moreover, that the
negative outcome was predictable. He therefore requested the Committee
to consider his communication admissible, because of the delay in the
proceedings and the unlikelihood of the effectiveness of domestic remedies.
The complaint
3.1 The late author and his
surviving spouse claim that the restitution of the property in question
was annulled for political and economic reasons and the legislation was
amended to exclude him from the possibility of obtaining redress for the
confiscation of his property. It is claimed that this constitutes a violation
of article 26 of the Covenant, as well as of article 14, paragraph 1,
because of political interference with the legal process (such as the
Minister's decision of 23 November 1995). In this context, the author
also refers to the long delays in the hearing of his case.
3.2 Further, he claims that
the requirement of continuous citizenship for the restitution of property
is in violation of article 26 of the Covenant and refers to the Committee's
jurisprudence on this point. The author also claims that the restitution
conditions applying to him are discriminatory in comparison with those
applying to post-1948 confiscations.
The State party's observations
4.1 By submission of 13 June
1997, the State party noted that the author appealed to the Prague City
Court from the decision of the District Land Office in Semily of 8 March
1996. As of June 1997, the proceedings were not completed, since the Land
Office could not send the files concerning the case to the City Court,
since these were still with the High Court.
4.2 Considering that the author
commenced proceedings in the High Court in January 1996 against the decision
of the Minister of Agriculture to annul the restitution, and that by December
1996, the preparatory stage of obtaining all necessary documentary evidence
was completed, the State party argued that no undue prolongation had occurred.
4.3 The State party indicated
that remedies exist when the author feels that the proceedings are being
intentionally delayed. The author could have complained to the Chairman
of the court, from where a possibility of review with the Ministry of
Justice exists. Another remedy available to the author is a constitutional
complaint, which may be accepted even if he has not exhausted domestic
remedies if the application of remedies is unduly delayed and he has suffered
serious harm as a result.
4.4 According to the State
party, the rights invoked by the author are rights that can be asserted
through a constitutional complaint, since international treaties regarding
human rights are directly applicable and superior to law.
4.5 The State party rejects
the author's suggestion that any attempts to assert his rights through
the courts is useless because of the political interference with the judicial
process. As regards the Prime Minister's letter concerning the interpretation
of Law No. 243/1992, the State party denies that this letter was a political
instruction for the courts. It notes that the letter was not addressed
to a court and that it was merely a reply to an information request from
the chairman of the local branch of his party and the contents were general
in nature. If the author nevertheless fears that the letter may affect
the impartiality of the court, he may ask the Constitutional Court to
order that the letter should be removed from the court file on the ground
of interference by a public authority with the exercise of his right to
a fair hearing.
4.6 The State party submits
that difference in treatment between the Restitution Law No. 243/1992
and the laws applying to the post-1948 confiscations does not constitute
discrimination, as the two sets of laws serve different purposes and cannot
be compared.
4.7 The State party concluded
that the author has failed to exhaust domestic remedies and that the communication
is thus inadmissible under article 5, paragraph 2 (b), of the Optional
Protocol. The State party also submits that since the author's allegations
are not substantiated and/or do not disclose an appearance of a violation
of any of the rights set forth in the Covenant, the communication is inadmissible
ratione materiae.
The author's comments
5.1 In his comments, the author
refers to his original communication and submits that the State party
has basically failed to contradict any of his claims.
5.2 He emphasizes that he
retained his Czech citizenship under Benes Decree No. 33/1945, and that
thus all the requirements of the original Law 243/1992 had been fulfilled
when the Land Office approved the return of his property. The author notes
that the State party remains silent about amendment 30/1996, introducing
a further condition of continuous Czech citizenship, which did not apply
when his restitution contract was approved in 1993. According to the author,
this amendment made it possible to expropriate him again.
5.3 According to the author,
the application of further domestic remedies would be futile because of
the political interests in his case. He moreover points to the delays
in the handling of the case, whether intentional or not.
5.4 The author dismisses the
State party's attempt to explain away the Minister's letter as a simple
expression of opinion and maintains that the opinion of the Prime Minister
was equated with an interpretation of the law, and submits that the political
dimension of his restitution procedure is evident from the interaction
of several components.
5.5 With regard to the petition
received by the Ministry of Agriculture from local residents, the author
points out that the decision of the Semily Land Office was handed down
on 10 March 1993 and the petition against it was submitted on 7 August
1995, two years and five months later. The Minister of Agriculture's order
quashing the Semily Land Office's earlier decision followed on 23 November
1995, three and half months after the petition. It becomes evident that
the 30-day time limit stipulated in Law 85/1990 concerning the right of
petition was not observed.
5.6 In a further submission,
the author states that his complaint against the Minister's decision of
23 November 1995 was rejected by the High Court on 25 August 1997. The
author claims that the reasons given by the court again illustrate the
political nature of the process.
5.7 On 25 March 1998, the
Prague City Court rejected the author's appeal against the refusal of
the restitution of his property by the Land Office in 1996, since he no
longer fulfilled the requirements added to the law in amendment 30/1996.
On 24 July 1998, the author filed a complaint against this decision with
the Czech Constitutional Court.
5.8 The author further submits
that even if the Constitutional Court would find in his favour, the decision
would again be referred to the first instance (the Land Office), thus
entailing considerable further delay and opening the door for more political
intervention. According to the author, the whole procedure could easily
take another five years. He considers this to be unjustifiably long, also
in view of his age.
5.9 In this context, the author
recalls the salient aspects of his case. The restitution contract which
he concluded was approved by the Land Office on 10 March 1993, and the
appeal against the approval was rejected by the Central Land Office on
30 July 1993, after which the restitution was effected in accordance with
Law 243/1992. Only on 25 November 1995, that is more than two years after
he had taken possession of his lands, did the Minister of Agriculture
quash the Land Office's decision, on the ground that the Office had not
sufficiently verified whether the author complied with the requirement
of permanent residence. It appears from the Court judgements in the case,
that at the time of the Minister's decision, it was expected that the
Constitutional Court would declare this residence requirement unconstitutional
(it subsequently did so, on 12 December 1995, less than a month after
the Minister's decision). After a requirement of continued citizenship
was added to Law 243/1992 by law 30/1996 of 9 February 1996, the Land
Office then reviewed the legality of the restitution agreement in the
author's case, and applying the new law declared the agreement invalid
on 3 March 1996. The two court proceedings which the author then initiated,
were delayed, as acknowledged by the State party, in one case because
the Ministry was not in a position to furnish the papers needed by the
Court, and in the other because of a backlog at the court in handling
cases.
Admissibility considerations
6.1 Before considering any
claims contained in a communication, the Human Rights Committee must,
in accordance with article 87 of its rules of procedure, decide whether
or not it is admissible under the Optional Protocol to the Covenant.
6.2 During its sixty-fifth
session in March 1999, the Committee considered the admissibility of the
communication. It noted the State party's objection to the admissibility
of the communication on the ground that the author had failed to exhaust
all domestic remedies available to him. The Committee noted, however,
that in August 1997, the High Court rejected the author's complaint against
the Minister's decision, and on 25 March 1998, the City Court in Prague
rejected his appeal against the Land Office's decision of 1996. The text
of these decisions shows that no further appeal is possible. The effect
is to preclude any further attempt by the author to validate and seek
approval of the restitution agreement of 1992.
6.3 The author has since filed
a constitutional complaint against the Prague City Court decision that
the requirement of continued citizenship is legitimate. The Committee
noted that in the instant case, the Constitutional Court had already examined
the constitutionality of Law 243/1992. In the opinion of the Committee
and having regard to the history of this case, a constitutional motion
in the author's case would not offer him a reasonable chance of obtaining
effective redress and therefore would not constitute an effective remedy
which the author would have to exhaust for purposes of article 5, paragraph
2 (b), of the Optional Protocol.
6.4 In this context, the Committee
also took note of the author's arguments that even if he were to win a
constitutional appeal, the case would then be referred back, and the proceedings
could take another five years to become finalized. In the circumstances,
taking into account the delays which had already been incurred in the
proceedings and which were attributable to the State party, the delays
which would likely occur in future and the author's advanced age, the
Committee also found that the application of domestic remedies had been
unreasonably prolonged.
7. On 19 March 1999, the Committee
held that the communication was admissible insofar as it might raise issues
under articles 14, paragraph 1, and 26 of the Covenant.
Consideration of the
merits
8.1 Pursuant to article 5,
paragraph 1, of the Optional Protocol, the Committee proceeds to an examination
of the merits, in the light of the information submitted by the parties.
It notes that it has received sufficient information from the late author
and his surviving spouse, and that no further information on the merits
has been received from the State party subsequent to the transmittal of
the Committee's admissibility decision, notwithstanding two reminders.
The Committee recalls that a State party has an obligation under article
4, paragraph 2, of the Optional Protocol to cooperate with the Committee
and to submit written explanations or statements clarifying the matter
and the remedy, if any, that may have been granted.
8.2 The Committee has noted
the author's claims that the State party has violated article 14, paragraph
1, of the Covenant because of alleged interference by the executive and
legislative branches of government in the judicial process, in particular
through the letter of the Prime Minister dated 29 April 1993, and because
of the adoption of retroactive legislation aimed at depriving the author
of rights already acquired by virtue of prior Czech legislation and decisions
of the Semily Land Office. With regard to the adoption of retroactive
legislation, the Committee observes that, whereas an allegation of arbitrariness
and a consequent violation of article 26 is made in this respect, it is
not clear how the enactment of law 30/1996 raises an issue under article
14, paragraph 1. As to the Prime Minister's letter, the Committee notes
that it was part of the administrative file in respect of the author's
property which was produced in Court, and that there is no indication
whether and how this letter was actually used in the court proceedings.
In the absence of any further information, the Committee takes the view
that the mere existence of the letter in the case file is not sufficient
to sustain a finding of a violation of article 14, paragraph 1, of the
Covenant.
8.3 With regard to the author's
allegation of a violation of article 26 of the Covenant, the Committee
begins by noting that Law No. 243/1992 already contained a requirement
of citizenship as one of the conditions for restitution of property and
that the amending Law No. 30/1996 retroactively added a more stringent
requirement of continued citizenship. The Committee notes further that
the amending Law disqualified the author and any others in this situation,
who might otherwise have qualified for restitution. This raises an issue
of arbitrariness and, consequently, of a breach of the right to equality
before the law, equal protection of the law and non-discrimination under
article 26 of the Covenant.
8.4 The Committee recalls
its Views in cases No. 516/1993 (Simunek et al.), 586/1994 (Joseph Adam)
and 857/1999 (Blazek et al.) that a requirement in the law for citizenship
as a necessary condition for restitution of property previously confiscated
by the authorities makes an arbitrary, and, consequently a discriminatory
distinction between individuals who are equally victims of prior state
confiscations, and constitutes a violation of article 26 of the Covenant.
This violation is further exacerbated by the retroactive operation of
the impugned Law.
9.1 The Human Rights Committee,
acting under article 5, paragraph 4, of the Optional Protocol, is of the
view that article 26, in conjunction with article 2 of the Covenant, has
been violated by the State party.
9.2 In accordance with article
2, paragraph 3 (a) of the Covenant, the State party is under an obligation
to provide the late author's surviving spouse, Dr. Johanna Kammerlander,
with an effective remedy, entailing in this case prompt restitution of
the property in question or compensation therefor, and, in addition, appropriate
compensation in respect of the fact that the author and his surviving
spouse have been deprived of the enjoyment of their property since its
restitution was revoked in 1995. The State party should review its legislation
and administrative practices to ensure that all persons enjoy both equality
before the law as well as the equal protection of the law.
9.3 The Committee recalls
that the Czech Republic, by becoming a State party to the Optional Protocol,
recognized the competence of the Committee to determine whether there
has been a violation of the Covenant or not and that, pursuant to article
2 of the Covenant, the State party has undertaken to ensure to all individuals
within its territory or subject to its jurisdiction the rights recognized
in the Covenant and to provide an effective and enforceable remedy in
case a violation has been established. Furthermore, the Committee urges
the State party to put in place procedures to deal with Views under the
Optional Protocol.
9.4 In this connection, the
Committee wishes to receive from the State party, within 90 days following
the transmittal of these Views to the State party, information about the
measures taken to give effect to these Views. The State party is also
requested to publish the Committee's Views.
___________________
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr.
Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr. Maurice
Glèlè Ahanhanzo, Mr. Louis Henkin, Mr. Ahmed Tawfik Khalil, Mr. Eckart
Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga,
Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan
Shearer, Mr. Hipólito Solari Yrigoyen and Mr. Maxwell Yalden.
[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.]
Notes
1. The Czech and Slovak Federal
Republic ceased to exist on 31 December 1992. On 22 February 1993, the
new Czech Republic notified its succession to the Covenant and the Optional
Protocol.
