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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 1 April 2008,
Adopts the following:
DECISION ON ADMISSIBILITY
1. The author of the communication is Herbert Schmidl, born in 1923 in the
former Czechoslovakia, now residing in Germany. He claims to be a victim of
a violation by the Czech Republic [FN1] of articles 2, 14, paragraph 1, and
26 of the Covenant. The author is not represented.
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[FN1] The Optional Protocol entered into force for the Czech Republic on 1
January 1993, as a consequence of the Czech Republic's notification of
succession of the international obligation of Czechoslovakia, which had
ratified the Optional Protocol in March 1991.
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FACTS AS PRESENTED BY THE AUTHOR
2.1 The author's uncle and aunt owned an agricultural estate in the region
of the Sudetenland, which was incorporated into the territory of the German
Reich between 1938 and 1945. In May 1945, the estate was occupied by the Red
Army and subsequently confiscated by the post-war Czechoslovak
administration. In 1946, the author and his family were expelled from
Czechoslovakia. The property in question is alleged to have been confiscated
prior to the Presidential Decree No. 12/1945 (the "Beněs Decreeö) and thus
was illegal. No compensation was paid for the property in question, for
which the author claims to be the sole heir.
2.2 The author wrote to the Czech Minister of Finance ("the Minister") on
three occasions, 18 February and 26 April 1992, and 2 August 1998,
requesting the return of his property. On 25 August 1998, the Minister
informed the author that the restitution law in place [FN2] applied only to
property confiscated between 1948 and 1989, that similar restitution claims
to property owned by Germans had been rejected in the past, and that the
State authorities would not reply to any further correspondence on the
matter. In the same letter (responding to the author's letter of 2 August
2007) it was also stated that as the will upon which the land in question
was allegedly devolved, was invalid, the author had never become the legal
owner of the property.
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[FN2] It is assumed that the author is referring to Law No. 87/1991.
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2.3 According to the author, both the Czech Supreme Court and Constitutional
Court declared the failure to compensate for the expropriation of property
owned by Germans and Hungarians prior to 1948 as lawful and legitimate". He
submits that Sudeten Germans could be compensated if they could prove their
fidelity to the Czech Republic, which was not the case for Czech nationals
requesting compensation. He alleges that the former Prime Minister Klaus has
stated that, although the restitution to German and Hungarian victims might
be possible by virtue of law, it was politically unacceptable.
THE COMPLAINT
3.1 The author argues that domestic remedies were inaccessible to him and
ineffective in his case. The Minister failed to respond to his requests to
be informed of applicable procedures to challenge the view that his case did
not comply with the law on restitution and refused to transfer the author's
complaint to the competent court. In this way, the Czech authorities
prevented him from judicially pursuing the restitution of his property. In
addition, by failing to respond to the author between 1992 and 1998, the
Minister is responsible for unduly prolonging exhaustion of domestic
remedies. Without knowing the competent court in which to make his
application, the author alleges he would have been unable to secure counsel
to represent him. In addition, he adds that the exhaustion of remedies would
have been ineffective given the decisions of the Supreme Court and the
Constitutional Court, which declared the restitution act lawful.
3.2 The author claims that his complaint is admissible ratione temporis,
because his complaint is not about the actual confiscation of property in
1945, but about the State party's refusal to return it. He argues that the
State party's denial of compensation was not confirmed until the Minister's
letter of 25 August 1998, which was after the entry into force of the
Optional Protocol. Prior to that date, restitution was not excluded in
principle, but depended on "intergovernmental agreements" [FN3] between the
Czech Republic and Germany.
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[FN3] It is not specified which "intergovernmental agreements" the author
refers to.
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3.3 The author claims a violation of article 2, as the State party has not
paid him adequate compensation for the loss of his property. [FN4] He claims
that the denial of his right to access to the courts violates article 14. He
also alleges that proceedings have been unduly delayed within the meaning of
article 5, paragraph 2 (b), of the Optional Protocol, as his efforts over
several years to obtain clarification concerning applicable remedies have
not led to a response from the Czech authorities.
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[FN4] The author refers to the Committee's jurisprudence in Communication No.
747/1997, Des Fours Walderode v Czech Republic, Views adopted on 30 October
2001.
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3.4 The author alleges a violation of his right to non-discrimination, under
article 26, as the restitution laws currently in force in the Czech Republic
discriminate against him on the basis of his Sudeten German descent. He
claims that the restitution law excludes Sudeten Germans from restitution
claims due to a) the fact that the law only considers confiscations that
were made between 1948 and 1989, and b) the condition that only Czech
nationals may claim such compensation. The author further alleges
discrimination with respect to the necessity for German citizens to "prove
their loyalty" [FN5], a condition which is not necessary for Czech nationals.
Further, German and Hungarian nationals have to bring evidence of continuous
Czech citizenship from the end of the war to 1990, whereas Czech nationals
only have to prove their citizenship at the date of their application. The
fact that other groups of victims have obtained adequate compensation
constitutes discrimination against the Sudeten Germans as a group.
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[FN5] The author does not provide further detail on this point.
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3.5 The author claims that the property in question was confiscated
illegally and that for this reason he, as sole beneficiary of his uncle's
and aunt's estate, remains the owner of the property in question. According
to Governmental Decree No.8/1928 GBI, any confiscation had to be preceded by
the delivery of "an individual notice". The author claims that no such
notice was delivered with respect to the property in question. He claims
that the confiscation occurred prior to the entry into force of the Beněs
Decree, which was alleged to have constituted the legal basis for the
confiscation. Even if the confiscation is considered to have taken place in
light of the decree, it remains illegal as the original owner was
antifascist and employed Czech citizens on his farm, against the will of the
Nazis. According to subsection 2 of the Presidential Decree, land from any
persons of German or Hungarian nationality who actively participated in the
fight to preserve the integrity and liberation of Czechoslovakia should not
have been confiscated. Finally, he argues that the confiscation was illegal
as it coincided with the crime of genocide - which he claims arose from the
expulsion of the Sudeten Germans.
THE STATE PARTY'S SUBMISSION ON ADMISSIBILITY AND MERITS
4.1 On 17 May 2007, the State party commented on the admissibility and
merits of the communication. It submits that the communication is
inadmissible for: non-exhaustion of domestic remedies; ratione temporis; an
abuse of the right of submission; and incompatibility ratione materiae. As
to non-exhaustion, it submits that the author never raised any of this
claims before the competent authorities. It assumes that the confiscation of
the property in question is alleged to have taken place under Presidential
Decree No. 12/1945, which entered into force on 23 June 1945. However, as
the Covenant did not enter into force until 23 March 1976, it submits that
the communication is ratione temporis.
4.2 The State party invokes to the jurisprudence [[FN6] of the Committee by
arguing that the submission of the communication is an abuse of the right of
submission. The author's initial letter to the Committee was dated 4 January
2002, i.e. 9 years after the Optional Protocol entered into force, which is
an unacceptable length of time to wait before addressing the Committee. It
also submits that the right to property is not guaranteed under the
Covenant, let alone its recovery and that the communication is thus,
inadmissible ratione materiae with the provisions of the Covenant.
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[FN6] Communication No. 787/1997, Gobin v. Mauritius, decision of 16 July
2001, para. 6.3.
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4.3 On the merits, the State party submits that the communication is
"ill-founded", as the will upon which the author is alleged to have become
the owner of the property was made on 9 March 1956. Given that the property
is alleged to have been confiscated in 1945, it claims that he could not
have become the rightful owner of the property. It also submits that said
will was invalid ab initio, as according to section 535 of the then Civil
Code, only an individual testator could have made such a disposition. Two
individuals could not have made a will jointly as occurred in this case.
THE AUTHORS' COMMENTS
5.1 On 12 November 2007, the author reiterates that the expropriation took
place at the beginning of May 1945, prior to the entry into force of
Presidential Decree No. 12/1945. According to a report dated 8 August 1945
from the author's uncle, a Czech administrator appeared together with Czech
militia men to seize his estate. The author disputes the claim that he made
no effort to request restitution of his property and points to the letters
written to the Minister (see para.2.2). He reiterates his claim that the
restitution laws discriminate against him under article 26 for the reasons
set out in paragraph 3.4 above.
5.2 The author reiterates his arguments on the admissibility of the
communication ratione temporis, and that the confiscation of the property
was not legitimate and that the Minister's refusal to return his property on
25 August 1998 dates after the entry into force of the Optional Protocol. In
this context, he invokes the Committee's jurisprudence [FN7] to the effect
that the violations complained of continued after the entry into force of
the Optional Protocol and are thus ratione temporis. As to the State party's
arguments on abuse, he submits that apart from his efforts to exhaust
domestic remedies through his correspondence with the Ministry, he attempted
to resolve the issue by initiatives taken in Germany, including his attempts
to seek "diplomatic protection" FN8 through various applications through the
administrative courts FN9 which were all very time consuming.
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[FN7] Communication No. 586/1994, Adam v. Czech Republic, Views adopted on
23 July 1996; Communication No. 857/1999, Blazek v. Czech Republic, Views
adopted on 12 July 2001; Communication No. 945/2000, Marik v. Czech
Republic, Views adopted on 26 July 2005; Communication No. 1054/2002, Kriz
v. Czech Republic, Views adopted on 1 November 2005; Communication
1463/2006, Gratzinger v. Czech Republic, Views adopted on 25 October 2007.
FN8 The author did not specify what he meant by "diplomatic protection".
FN9 Communication No. 1516/2006, Schmidl v. Germany, decision of 31 October
2007.
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5.3 As to the State party's arguments on the merits, he reiterates that the
confiscation in question was invalid and thus his uncle and aunt remained
the rightful owners until their death. As to the will, the author disputes
the State party's argument that it is invalid, and refers to the legitimacy
of German certificates of inheritance dated 17 January 1997 and 12 March
1998, pursuant to which the author was designated as the sole heir to his
uncle's and aunt's estate. He also states that, under German law, spouses
are allowed to make their will jointly.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant. The Committee has ascertained, as required under article 5,
paragraph 2 (a), of the Optional Protocol, that the matter is not being
examined under another procedure of international investigation or
settlement.
6.2 The State party has argued that the communication is inadmissible, inter
alia, for nonexhaustion of domestic remedies. It also notes that the State
party contests the author's claim that he was the lawful beneficiary of his
aunt and uncle's estate, as the will upon which he relies was considered
invalid. The Committee notes that the only efforts made by the author to
exhaust domestic remedies in the State party were several letters addressed
to the Czech Ministry of Finance, in which he requested the Ministry to
forward his complaint to the competent court. The Committee observes that
the author has failed to raise any of the claims made in the present
communication before any court in the State party. As to the claim that the
exhaustion of remedies would have been ineffective, the Committee notes that
the pursuit of a court action would have, inter alia, clarified the
contested facts in the author's case, upon which the Committee is not in a
position to evaluate, notably, the actual ownership of the land in question
and whether the author was the lawful beneficiary of his aunt and uncle's
estate. It recalls that article 5, paragraph 2 (b) of the Optional Protocol,
by referring to "all available domestic remedies", refers in the first place
to judicial remedies [FN10]. The Committee considers that it was the
author's own duty to take all reasonable steps to identify the court with
the appropriate jurisdiction or to demonstrate the absence of such a court.
Accordingly, the Committee concludes that the communication is inadmissible
under article 5, paragraph 2 (b), of the Optional Protocol for failure to
exhaust domestic remedies.
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[FN10] Communication No. 262/1987, R.T. v France, decision of 30 March 1989
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6.3 The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 5, paragraph 2 (b)
of the Optional Protocol;
(b) That this decision shall be communicated to the State party and to the
author.
[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.]
Made public by decision of the Human Rights Committee.
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