CHAIRPERSON: Ms. Christine Chanet (France)
VICE-CHAIRPERSONS: Mr. Prafullachandra Natwarlal Bhagwati (India),
Mr. Omran El Shafei (Egypt), Ms. Cecilia Medina Quiroga (Chile)
RAPPORTEUR: Ms. Elizabeth Evatt (Australia)
MEMBERS: Mr. Nisuke Ando (Japan) , Mr. Thomas Buergenthal (United
States), Lord Colville (United Kingdom), Mr. Eckart Klein (Germany),
Mr. David Kretzmer (Israel), Ms. Pilar Gaitan De Pombo (Colombia),
Mr. Rajsoomer Lallah (Mauritius), Mr. Fausto Pocar (Italy), Mr.
Julio Prado Vallejo (Ecuador), Mr. Martin Scheinin (Finland), Mr.
Danilo Turk (Slovenia) , Mr. Maxwell Yalden (Canada), Mr. Abdallah
Mr. Omran El Shafei did not attend the sixtieth session.
||Drobek v. Slovk., Comm. 643/1995,
U.N. Doc. A/52/40, Vol. II, at 300 (HRC 1997)
||Report of the Human Rights
Committee, U.N. GAOR, 52nd Sess., Supp. No. 40, U.N. Doc. A/52/40,
Vol. II, Annex VII, sect. G, at 300 (Sep.21, 1997); Office of the
U.N. High Comm'r for Human Rights, Selected Decisions of the Human
Rights Committee under the Optional Protocol, Vol. VI, at 13, U.N.
Doc. CCPR/C/OP/6, U.N. Sales No. E.05.XIV.1 (2005)
||the Kingsford Legal Centre,
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
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
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
7. The Human Rights Committee therefore decides:
(a) the communication is inadmissible under article 2 of the Optional
(b) that this decision shall be communicated to the State party, to the
author and to his counsel.
INDIVIDUAL OPINION BY COMMITTEE MEMBERS CECILIA MEDINA QUIROGA AND ECKART
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
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]