Communication No. 765/1997**
Submitted by: Ms.
Eliska Fábryová
Alleged victim: The
author
State party: The
Czech Republic
Date of communication:
28 May 1997 (initial submission)
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. 765/1997, submitted to the Human
Rights Committee by Eliska Fábryová 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 the State party,
Adopts the following:
Views under article
5, paragraph 4,
of the Optional Protocol
1. The author of the communication
is Eliska Fábryová, née Fischmann, a Czech citizen, born on 6 May 1916.
The author claims to be a victim of discrimination by the Czech Republic.
The Optional Protocol entered into force for the Czech Republic on 12 June
1991 (1).
The facts as submitted by the author
2.1 The author's father Richard
Fischmann owned an estate in Puklice in the district of Jihlava, Czechoslovakia.
In 1930, at a national census, he and his family registered as Jews. In
1939, after the occupation by the Nazis, the estate was "aryanised"
(2) and a German sequestrator was appointed. Richard Fischmann
died in 1942 in Auschwitz. The author is not represented by counsel.
2.2 The rest of the family
was interned in concentration camps and only the author and her brother
Viteslav returned. In 1945, the estate of Richard Fischmann was confiscated
under Benes decree 12/1945 because the district committee decided that
he was German as well as a traitor to the Czech Republic (3), the
assumption that he was German being based on the assertion that he had
lived "in a German way".
2.3 The author's appeal against
the confiscation was dismissed. The decision of the district committee
was upheld by a judgment of the highest administrative court in Bratislava
on 3 December 1951.
2.4 After the end of communist
rule in Czechoslovakia, the author lodged a complaint to the General procurator,
on 18 December 1990, for denial of justice with regard to her claim for
restitution. Her complaint was dismissed on 21 August 1991 for being out
of time, having been lodged more than five years after the confiscation.
The author states that under Communist rule it was not possible to lodge
a complaint within the time limit of five years as prescribed by law.
2.5 The author states that
on 17 June 1992 she applied for restitution according to the law No. 243/1992
(4). Her application was dismissed on 14 October 1994 by the Land
Office of Jihlava.
The complaint
3. The author claims to be
a victim of discrimination as under the law No. 243/1992 she is not entitled
to restitution of her father's property.
State party's observations
4.1 By submission of 20 October
1997, the State party stated that the author's application for restitution
of her father's property was dismissed by the Jihlava Land Office on 14
October 1994, on grounds of non-compliance with the legal requirements.
It explained that the confiscated property of persons who were deprived
of Czechoslovak citizenship under the Benes decrees in 1945, may be restituated
in cases where the claimant has his citizenship renewed through the procedures
set by law. However, the law did not expressly address the situation of
persons who never lost their citizenship and whose property was confiscated
in violation of the laws operative at that time. Since the author's father
never lost his Czechoslovak citizenship, he could not be considered to
be an entitled person and the property could not be restored.
4.2 The State party further
explained that the author's appeal was dismissed for being filed out of
time. The author's lawyer then raised the objection that the Land Office's
decision had not been served properly, since it had not been served to
the lawyer directly, but to a member of his staff, who was not authorized
to receive it. The Land Office accepted the objection, and served the
decision again. The author subsequently appealed against the decision.
The City Court dismissed the appeal by a ruling dated 6 August 1996, on
the ground that the decision had been properly served the first time and
should not have been served a second time. On 11 October 1996, the author
filed a constitutional complaint, which was dismissed by the Constitutional
Court as inadmissible ratione temporis.
4.3 On the basis of the all
the reasons given, the State party argued that the author's communication
was inadmissible for non-exhaustion of domestic remedies since she missed
the deadlines for the appeals.
4.4 The State party further
submitted that, since the present communication had been submitted to
the Committee, the Constitutional Court had decided, in cases similar
to that of the author's father, that applicants who never lost their citizenship
were also entitled to restitution under law no. 243/1992. As a consequence,
the Central Land Office, which examined the author's file, decided that
the Land Office's decision in the author's case should be reviewed, since
it was inconsistent with the Constitutional Court's ruling. On 27 August
1997, the Central Land Office initiated administrative proceedings and
on 9 October 1997, it quashed the Land Office's decision of 14 October
1994, and decided that the author should restart her application for restitution
ab initio. Normal appeal possibilities would be open to the author
if she was not satisfied with the outcome of the proceedings. Also for
this reason, the State party argued that the communication was inadmissible
under article 5, paragraph 2(b), of the Optional Protocol.
The author's comments
5.1 By a letter of 21 January
1998, the author rejected the State party's argument that her communication
was inadmissible, since she had already appealed up to the Constitutional
Court and no further appeal was available. However, the author confirmed
that after her communication was registered for consideration by the Human
Rights Committee, new proceedings were ordered.
5.2 In a further submission,
the author forwarded a copy of a letter by the Ministry for Agriculture,
dated 25 May 1998, in which she was informed that the decision of the
Central Land Office of 9 October 1997 to quash the decision of the Land
Office of 14 October 1994 had been served to other interested parties
after the expiration term of three years of the latter decision, and that
it therefore did not attain legal force.
5.3 The author claimed that the pattern of arbitrariness in her case constitutes
a flagrant violation of human rights in denying her a remedy for the abuses
committed against her and her family in the past.
Additional comments
by the State party on the admissibility
6. No further observations
were received from the State party, although the author's comments had
been transmitted to it.
Decision on admissibility
7. At its sixty-sixth session,
on 9 July 1999, the Committee considered the admissibility of the communication.
Having ascertained, pursuant to article 5, paragraph 2 of the Optional
Protocol, that the author had exhausted all available domestic remedies
and that the same matter was not being examined under another procedure
of international investigation or settlement, the Committee also noted
that the State party reopened the author's case by a decision of the Central
Land Office of 9 October 1997 and that, as a result of errors apparently
committed by the State party's authorities, the decision to quash the
original decision of the Land Office had never come into effect. In the
circumstances, the Committee declared the communication admissible.
Observations by the
parties on the merits
8. 1 Despite having been invited
to do so by the decision of the Committee of 9 July 1999 and by a reminder
of 19 September 2000, the State party has not submitted any observations
or comments on the merits of the case.
8.2 By letters of 25 January 2000, 29 August 2000 and 25 June 2001, the
author brought to the attention of the Committee that despite the adoption
by the State party's Parliament of new legislative measures governing
the restitution of property confiscated as a result of the Holocaust (Act
No. 212/2000), the authorities had not been willing to apply such a legislation
and have never compensated her.
8.3 Despite having been transmitted
the above information by a letter of 24 July 2001, the State party has
not made any additional comments.
Issues and proceeding
before the Committee
9.1 The Human Rights Committee
has considered the present communication in the light of all the information
made available to it by the parties, as provided in article 5, paragraph
1 of the Optional Protocol. Moreover, in the absence of any submission
from the State party following the Committee's decision on admissibility,
the Committee relies on the detailed submissions made by the author so
far as they raise issues concerning Law nr. 243/1992 as amended. The Committee
recalls in this respect 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. The complaint of the
author raises issues under article 26 of the Covenant.
9.2 The Committee notes that
the State Party concedes that under Law nr 243/1992 individuals in a similar
situation as that of the author qualify for restitution as a result of
the subsequent interpretation given by the Constitutional Court (para.
4.4). The State Party further concedes that the decision of the Jihlava
Land Office of 14 October 1994 was wrong and that the author should have
had the opportunity to enter a fresh application before the Jihlava Land
Office. The author's renewed attempt to obtain redress has, however, been
frustrated by the State party itself which, through a letter of the Ministry
of Agriculture of 25 May 1998, informed the author that the decision of
the Jihlava Land Office of 14 October 1994 had become final on the ground
that the decision of the Central Land Office reversing the decision of
the Jihlava Land Office had been served out of time.
9.3 Given the above facts,
the Committee concludes that, if the service of the decision of the Central
Land Office reversing the decision of the Jihlava Land Office was made
out of time, this was attributable to the administrative fault of the
authorities. The result is that the author was deprived of treatment equal
to that of persons having similar entitlement to the restitution of their
previously confiscated property, in violation of her rights under article
26 of the Covenant.
10. The Human Rights Committee,
acting under article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights, is therefore of the view that
the facts before it disclose a violation of article 26 of the Covenant.
11. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
remedy, including an opportunity to file a new claim for restitution or
compensation. 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.
12. 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.
13. 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 the 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, Mr. Rafael Rivas Posada,
Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr.
Ivan Shearer and Mr. Maxwell Yalden.
** The text of a dissenting
individual opinion signed by Committee member Ms. Christine Chanet 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.]
Appendix
Individual opinion
of Committee member Ms. Christine Chanet
The State party did not consider it necessary to provide any explanation
as to the substance of the case since, in its view, domestic remedies had
not been exhausted.
In paragraphs 10.2 and 10.3
of its decision the Committee finds a violation of the Covenant in administrative
decisions but fails to take into account the State party's observations,
in which the State party maintained that those decisions could be contested
through the remedy of the courts and that the author of the communication
had sought to avail herself of that remedy but had done so out of time.
Accordingly, this communication
ought, in my opinion, to have been considered inadmissible.
[original: French]
Notes
1. The Czech and Slovak Federal
Republic ratified the Optional Protocol in March 1991, but on 31 December
1992 the Czech and Slovak Federal Republic ceased to exist. On 22 February
1993, the Czech Republic notified its succession to the Covenant and the
Optional Protocol.
2. i. e. that the property
was taken away from Jews as "non-Aryans" and transferred to
the German State or German natural or juridical persons.
3. The author states that
according to the edict Nr. A 4600 9/11 45 VI/2 of the Ministry of the
Interior of 13 November 1945 the district committees had the competence
to examine the reliability of those persons who in 1930 had registered
as Jews.
4. Law no. 243/1992 provides
for the restitution of property which was confiscated as a result of Benes
decrees Nos. 12/1945 and 108/1945. One of the conditions to be eligible
for restitution is that the claimant must have been granted Czech citizenship
by decree 33/1945, Act no. 245/1948, 194/1949 or 34/1953.
