by: Messrs. Miroslav Blazek, George A. Hartman and George Krizek
victim: The authors
party: The Czech Republic
of communication: 16 October 1997 (initial submission)
Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
on: 12 July 2001,
concluded its consideration of communication No. 857/1999 submitted
to the Human Rights Committee by Messrs. Miroslav Blazek, George A.
Hartman and George Krizek under the Optional Protocol to the International
Covenant on Civil and Political Rights,
take into account all written information made available to it
by the authors of the communication, and the State party,
Views under article 5, paragraph 4, of the Optional Protocol
1. The authors
of the communications (dated 16 October 1997, 13 November 1997, and
29 November 1997 and subsequent correspondence) are Miroslav Blazek,
George Hartman and George Krizek, natives of Czechoslovakia who emigrated
to the United States after the Communist takeover in 1948, and who
subsequently became naturalized United States citizens. They claim
to be victims by the Czech Republic of violations of their Covenant
rights, in particular of article 26. They are not represented by counsel.
facts as submitted
2.1 The authors
are naturalized United States citizens, who were born in Czechoslovakia
and lost Czechoslovak citizenship by virtue of the 1928 Naturalization
Treaty between the United States and Czechoslovakia,. which precludes
dual citizenship. They left Czechoslovakia after the Communist takeover
in 1948. Their properties in Czechoslovakia were subsequently confiscated
pursuant to confiscation regulations of 1948, 1955 and 1959.
2.2 Mr. Miroslav
Blazek states that he is precluded from claiming his inheritance,
including real property in Prague and agricultural property in Plana-nod-Luznici
because he is not a Czech citizen. He submits copy of a letter from
his lawyer in the Czech Republic, advising him that he could not file
a claim in the present circumstances, since he does not fulfil the
conditions of Czech citizenship required by the applicable law. However,
his uncle, a French and Czech citizen, submitted a claim on his own
behalf and on behalf of the author concerning jointly-owned property
in Prague; the Government, however, severed the case and denied the
author his share.
A. Hartman, an architect by profession, was born in 1925 in the then
Czechoslovak Republic and emigrated to the United States on 26 December
1948. He obtained political asylum in the United States and became
a naturalized United States citizen on 2 April 1958, thus becoming
ineligible for dual citizenship according to the 1928 Naturalization
Treaty between the United States and Czechoslovakia. Until December
1948 he and his brother Jan (who subsequently became a French citizen
while retaining Czech citizenship) had owned four apartment buildings
in Prague and a country home in Zelizy.
2.4 By judgement
of 1 July 1955 the Criminal Court in Klatovy found Mr. Hartman to
have illegally left Czechoslovakia. He was sentenced in absentia and
his property in Czechoslovakia was formally confiscated as a punishment
for the illegal act of leaving the Czechoslovak Republic in 1948.
Pursuant to law 119/1990, adopted after the demise of the Communist
government, the author's criminal conviction for illegally leaving
the country was invalidated.
2.5 By application
of 17 October 1995 Mr. Hartman sought the restitution of his property,
but his application was rejected because he did not fulfil the requirement
of Czech citizenship. In order to qualify under the restitution law,
Mr. Hartman continued to seek to obtain Czech citizenship for many
years. Since 9 November 1999 he has dual Czech and United States citizenship.
Notwithstanding his current Czech citizenship, he has not been able
to obtain restitution because the statute of limitations for filing
claims for restitution expired in 1992.
Krizek states that his parents' property, including a wholesale business
(bicycles) in Prague, a grain and dairy farm in a Prague suburb, and
agricultural land in Sestajovice, was confiscated in 1948 without
any compensation. After the death of his parents, he fled Czechoslovakia
and emigrated to the United States, becoming a naturalized citizen
in 1974. In April 1991 he claimed ownership of his property pursuant
to Law No. 403/1990, but his claims were rejected by the Ministry
of Agriculture. In 1992 the author again presented his claims under
laws 228 and 229/1991. However, he was informed that in order to be
eligible for restitution, he would have to apply for Czech citizenship
and take up permanent residence in the Czech Republic. Notwithstanding,
he again filed a claim through his lawyer in Prague in 1994, without
2.7 By virtue
of a 1994 judgement of the Czech Supreme Court, the requirement of
permanent residence for restitution claims was removed, however the
requirement of Czech citizenship remains in force.
3.1 The authors
claim to be victims of violations of their Covenant rights by the
Czech Republic in connection with the confiscation of their properties
by the Communist authorities and the discriminatory failure of the
democratic Governments of Czechoslovakia and of the Czech Republic
to make restitution. They contend that the combined effect of Czech
laws 119/1990 (of 23 April 1990) on Judicial Rehabilitation, 403/1990
(of 2 October 1990) on restitution of property, 87/1991 (of 21 February
1991, subsequently amended) on Extra-Judicial Rehabilitation, 229/1991
(of 21 May 1991) on Agricultural Land and 182/1993 (of 16 June 1993)
on the creation of the Constitutional Court together with the position
taken by the Czech Government on Czech citizenship discriminates against
Czech émigrés who lost Czech citizenship and are now precluded from
recovering their property.
3.2 The authors
refer to the Committee's decision concerning communication No. 516/1992
(Simunek v. The Czech Republic) in which the Committee held
that the denial of restitution or compensation to the authors of that
communication because they were no longer Czech citizens constituted
a violation of article 26 of the Covenant, bearing in mind that the
State party itself had been responsible for the departure of its citizens,
and that it would be incompatible with the Covenant to require them
again to obtain Czech citizenship and permanently to return to the
country as a prerequisite for the restitution of their property or
for the payment of appropriate compensation.
3.3 The authors
contend that, in order to frustrate the restitution claims of Czech
émigrés to the United States, the Czech authorities used to invoke
the 1928 United States Treaty with Czechoslovakia which required
that anyone applying for the return of Czech citizenship. First renounce
United States citizenship. Although the Treaty was abrogated in 1997,
the subsequent acquisition of Czech citizenship does not, in the view
of Czech authorities, entitle the authors to reapply for restitution,
because the date for submission of claims has expired.
is made to the case of two other American citizens who applied to
the Czech courts for a ruling aimed at the deletion of the citizenship
requirement from law 87/1991. The Czech Supreme Court, however, confirmed
in its Judgement US 33/96 that the citizenship requirement was constitutional.
3.5 The authors
further complain that the State party is deliberately denying them
a remedy and that there has been a pattern of delay and inaction aimed
at defeating their claims, in contravention of article 2 of the Covenant.
3.6 One of
the authors, George A. Hartman, illustrates the alleged discrimination
by referring to the case of his brother Jan Hartman, who is a Czech
and French citizen, and who was able to obtain restitution for his
half of the property in Prague confiscated in 1948 pursuant
to judgement of 25 June 1991, whereas the author was denied compensation
because at the time of filing his claim he was not a Czech citizen.
of domestic remedies
4.1 The authors
claim that in their cases domestic remedies are non-existent, because
they do not qualify under the restitution law. Moreover, the constitutionality
of this law has already been tested by other claimants and affirmed
by the Czech Constitutional Court. They refer, in particular, to the
finding of the Constitutional Court in case US 33/96 (Jan Dlouhy
v. Czech Republic, decision of 4 June 1997), confirming the constitutionality
of the citizenship requirement in order to be an "eligible person"
under the Rehabilitation Law No. 87/1991.
complain that since 1989 they have devoted considerable amount of
time and money in futile attempts to obtain restitution, both by engaging
formal judicial procedures and by addressing petitions to government
ministries and officials, including judges at the Constitutional Court,
invoking inter alia the Czech Charter on Basic Rights and Freedoms.
of admissibility and examination of the merits
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.
5.2 The Committee
has ascertained that the same matter is not and has not been submitted
to any other instance of international investigation or settlement.
regard to the requirement laid down in article 5, paragraph 2 (b),
of the Optional Protocol that authors exhaust domestic remedies, the
Committee notes that the State party has not contested the authors'
argument that in their cases there are no available and effective
domestic remedies, and in particular, that because of the preconditions
of law 87/1991, they cannot claim restitution. In this context, the
Committee notes that other claimants have unsuccessfully challenged
the constitutionality of the law in question; that earlier views of
the Committee in the cases of Simunek and Adam remain
unimplemented; and that even following those complaints, the Constitutional
Court has upheld the constitutionality of the Restitution Law. In
the circumstances, the Committee finds that article 5, paragraph 2
(b), of the Optional Protocol does not preclude the Committee's consideration
of the communications of Messrs. Blazek, Hartman and Krizek.
5.4 With regard to the author's claim that they have suffered unequal
treatment by the State party in connection with the scheme of restitution
and compensation put into effect after the Optional Protocol entered
into force for the State party the Committee declares the communication
admissible, insofar as it may raise issues under articles 2 and 26
of the Covenant.
the Committee proceeds to an examination of the merits of the case,
in the light of the information before it, as required by article
5, paragraph 1, of the Optional Protocol. It notes that it has received
sufficient information from the authors, but no submission whatever
from the State party. In this connection, 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.
5.6 In the
absence of any submission from the State party, the Committee must
give due weight to the submissions made by the authors. The Committee
has also reviewed its earlier Views in cases No. 516/1993, Mrs.
Alina Simunek et al. and No. 586/1994, Mr. Joseph Adam.
In determining whether the conditions for restitution or compensation
are compatible with the Covenant, the Committee must consider all
relevant factors, including the original entitlement of the authors
to the properties in question. In the instant cases the authors have
been affected by the exclusionary effect of the requirement in Act
87/1991 that claimants be Czech citizens. The question before the
Committee is therefore whether the precondition of citizenship is
compatible with article 26. In this context, the Committee reiterates
its jurisprudence that not all differentiations in treatment can be
deemed to be discriminatory under article 26. A differentiation which
is compatible with the provisions of the Covenant and is based on
reasonable grounds does not amount to prohibited discrimination
within the meaning of article 26.
the criterion of citizenship is objective, the Committee must determine
whether in the circumstances of these cases the application of the
criterion to the authors would be reasonable.
5.8 The Committee
recalls its Views in Alina Simunek v. The Czech Republic and
Joseph Adam v. The Czech Republic, where it held that article
26 had been violated: "the authors in that case and many others in
analogous situations had left Czechoslovakia because of their political
opinions and had sought refuge from political persecution in other
countries, where they eventually established permanent residence and
obtained a new citizenship. Taking into account that the State party
itself is responsible for [their] … departure, it would be incompatible
with the Covenant to require [them] … to obtain Czech citizenship
as a prerequisite for the restitution of their property, or, alternatively,
for the payment of compensation" (CCPR/C/57/D/586/1994, para. 12.6).
The Committee finds that the precedent established in the Adam
case applies to the authors of this communication. The Committee would
add that it cannot conceive that the distinction on grounds of citizenship
can be considered reasonable in the light of the fact that the loss
of Czech citizenship was a function of their presence in a State in
which they were able to obtain refuge.
with regard to time limits, whereas a statute of limitations may be
objective and even reasonable in abstracto, the Committee cannot accept
such a deadline for submitting restitution claims in
the case of the authors, since under the explicit terms of the law
they were excluded from the restitution scheme from the outset.
6. The Human
Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights,
is of the view that the facts before it disclose a violation or article
26, in relation to Messrs. Blazek, Hartman, and Krizek.
7. In accordance
with article 2, paragraph 3 (a), of the Covenant, the State party
is under an obligation to provide the authors with an effective remedy,
including an opportunity to file a new claim for restitution or compensation.
The Committee further encourages the State party to review its relevant
legislation and administrative practices to ensure that neither the
law nor its application entails discrimination in contravention of
article 26 of the Covenant.
8. The Committee
recalls, as it did in connection with its prior Views concerning the
cases of Alina Simunek and Joseph Adam, 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.
9. 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 the
Views. The State party is also requested to translate into the Czech
language and 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, Mr. Patrick
Vella and Mr. Maxwell Yalden.
** The text
of an individual opinion by Committee member Nisuke Ando 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 General Assembly.
opinion of Committee member Nisuke Ando
Reference is made to my individual opinion appended to the Human Rights
Committee's Views on case No. 586/1994: Adam v. the Czech Republic.