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1. The author of the
communication is Zdenek Kríz, a U.S. and Czech citizen, born in 1916 in
Vysoké Mýto, Czech Republic, currently residing in the United States. He
claims to be a victim of a violation by the Czech Republic [FN1] of article
26 of the International Covenant on Civil and Political Rights (the
Covenant). He is not represented by counsel.
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[FN1] The Covenant was ratified by Czechoslovakia in December 1975 and the
Optional Protocol in March 1991.The Czech and Slovak Federal Republic ceased
to exist on 31 December 1992. On 22 February 1993, the Czech Republic
notified its succession to the Covenant and the Optional Protocol.
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FACTUAL BACKGROUND
2.1 Before 1948, the author lived in Prague where he owned 1/6th of an
apartment building and a business. In 1958, he was ordered to close his
business and to join a cooperative which took over his equipment, without
any compensation paid to him. In the early 1960's, the author, under
pressure, "donated" his 1/6th apartment building to the State. In 1968, he
left with his wife and two sons for Austria and subsequently emigrated to
the United States. In 1974, a Czechoslovak court sentenced the author, his
wife and his elder son, in absentia, to 18 months imprisonment for leaving
the country. On 16 April 1974, the author became a US citizen. By virtue of
a Naturalisation Treaty between the USA and Czechoslovakia from 1928, he
consequently lost his Czech citizenship.
2.2 On 1 February 1991, Act 87/1991 on Extra-Judicial Rehabilitation was
adopted by the Czech Government. It spelled out the conditions for recovery
of property for persons whose property had been confiscated under the
Communist rule. Under the Act, a person claiming restitution of property had
to be, inter alia, (a) a Czech-Slovak citizen and (b) a permanent resident
in the Czech Republic, to claim entitlement to recover his or her property.
These requirements had to be fulfilled during the time period in which
restitution claims could be filed, between 1 April and 1 October 1991. A
judgment of the Czech Constitutional Court of 12 July 1994 (No.164/1994),
however, annulled the condition of permanent residence and established a new
time frame for the submission of restitution claims by persons who had
thereby become entitled persons, running from 1 November 1994 to 1 May 1995.
In 1995, the author applied for Czech citizenship, which he obtained on 28
July 1995, i.e. after the expiry of the deadline for applications for
restitution.
2.3 On 14 April 1995, the author lodged a claim for restitution of property
to the owner of the apartment building, the State Housing Enterprise in
Prague 4, which did not accede to his request, because he did not fulfil the
condition of Czech citizenship in the stipulated time period. He brought his
case before the District Court of Prague 4, which rejected the restitution
claim on 27 April 1998, on the ground that he did not fulfil the citizenship
requirement during the period in which the new restitution claims could be
made (which ended on 1 May 1995). The Court did not consider whether he met
the other conditions necessary for establishing entitlement for recovery of
his property. On 3 December 1998, the Municipal Court in Prague confirmed
the decision of the District Court, stating that the author would have had
to fulfil the citizenship condition at the latest at the end of the initial
period open for claims, i.e. on 1 October 1991, to be an "entitled person".
On 25 July 2000, the Constitutional Court confirmed the decision on the same
grounds. The author thus claims to have exhausted domestic remedies.
THE COMPLAINT
3. The author claims to be a victim of a violation of article 26 of the
Covenant, as the citizenship requirement of Act 87/1991 constitutes unlawful
discrimination.
THE STATE PARTY'S SUBMISSION ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION AND AUTHOR'S COMMENTS
4.1 On 9 January 2003, the State party commented on the admissibility and
merits of the communication. It concedes that the author has exhausted all
available domestic remedies, and does not challenge the admissibility of the
communication. On a factual issue, the State party indicates that the author
only obtained Czech citizenship on 25 September 1997.
4.2 On the merits, the State party refers to its earlier submissions in
similar cases, and indicates that its restitutions laws, including Act
87/1991, were designed to achieve the purpose of mitigating the consequences
of injustices which occurred during the communist regime, while being aware
that these injustices can never be remedied in full.
4.3 The State party adopts the position spelled out in judgment No. 185/1997
of the Constitutional Court, according to which:
"The International Covenant on Civil and Political Rights stipulates the
principle of equality in its Article 2, para 1 and its Article 26. The right
to equality stipulated in Article 2 is of the accessory nature; e.g. it
applies only in conjunction with another right enshrined in the Covenant.
The Covenant does not contain the right to property. Article 26 stipulates
the equality before the law and the prohibition of discrimination.
Citizenship is not listed among the demonstrative enumeration of the grounds
on which discrimination is prohibited. The Human Rights Committee repeatedly
admitted differentiation based on reasonable and objective criteria. The
Constitutional Court considers the consequences of Article 11 para 2 of the
Charter of Fundamental Rights and Freedoms [FN2] as well as the objectives
of the restitution legislation and also the legislation concerning the
citizenship as being such reasonable and objective criteria."
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[FN2] Article 11 para 2 of the Charter of Fundamental Rights and Freedoms
stipulates that "law may determine that certain property may only be owned
by the citizens or legal entities having their seat in the Czech Republic".
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The State party confirms that it does not intend to change its position
about the condition of citizenship in the legislation: changing the
conditions laid down in the restitution law at this stage would influence
the economic and political stability, and destabilise the legal environment,
of the Czech Republic.
5.1 On 6 May 2004, the author commented on the State party's submissions. He
reiterates his initial claims and states that his case is similar to cases
already considered by the Committee, in particular the cases of Simunek,
Adam and Blazek, [FN3] in which the Committee found a violation by the State
party of article 26.
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[FN3] See Communication No. 516/1992, Simunek v. Czech Republic, Views
adopted on 19 July 1995, Communication No.586/1994, Adam v. Czech Republic,
Views adopted on 23 July 1996, and Communication No.857/1999, Blazek v.
Czech Republic, Views adopted on 12 July 2001.
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5.2 He further refers to laws which overturned all Communist verdicts of
confiscation (Law 119/1990) and to Constitutional Court decisions in other
cases, finding that the confiscation verdicts were null and void and that
the original ownership had never been lost.
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 the communication is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee has noted that the State party concedes to the
admissibility of the complaint and decides that the communication is
admissible in as far as it appears to raise issues under article 26 of the
Covenant.
CONSIDERATION OF THE MERITS
7.1 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.
7.2 The issue before the Committee is whether the application to the author
of Act 87/1991 amounted to discrimination, in violation of article 26 of the
Covenant. 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 objective and reasonable grounds does not amount to
prohibited discrimination within the meaning of article 26. [FN4] Whereas
the citizenship criterion is objective, the Committee must determine whether
its application to the author was reasonable in the circumstances of his
case.
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[FN4] See Communication No.182/1984, Zwaan-de Vries v. The Netherlands,
Views adopted on 9 April 1987, paragraph 13.
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7.3 The Committee recalls its Views in the cases of Adam, Blazek and Marik,
[FN5] where it held that article 26 had been violated. Taking into account
that the State party is itself responsible for the departure of the author
and his family from Czechoslovakia in seeking refuge in another country
where he eventually established permanent residence and obtained a new
citizenship, the Committee considers that it would be incompatible with the
Covenant to require the author to satisfy the condition of Czech citizenship
for the restitution of his property or alternatively for compensation.
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[FN5] Communication No.586/1994, Adam v. Czech Republic, Views adopted on 23
July 1996, paragraph 12.6, Communication No.857/1999, Blazek v. Czech
Republic, Views adopted on 12 July 2001, paragraph 5.8 and Communication No.
945/2000, Marik v. Czech Republic, Views adopted on 26 July 2005, paragraph
6.4
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7.4 The Committee considers that the precedent established in the above
cases also applies to the author of the present communication, and that the
application by the domestic courts of the citizenship requirement violated
his rights under article 26 of the Covenant.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it disclose a
violation of article 26 of the Covenant.
9. 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,
which may be compensation if the property cannot be returned. The Committee
reiterates that the State party should review its legislation to ensure that
all persons enjoy both equality before the law and equal protection of the
law.
10. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognised 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 recognised in the Covenant and to provide an
effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to the Committee's
views.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.
Pursuant to rule 90 of the Committee's rules of procedure, Committee member
Ms. Ruth Wedgwood did not participate in the adoption of the present
decision. |
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