The Czechoslovakian Restitution Cases: Article 26 of the ICCPR v. Ratione Temporis
Lawrence Cenk Laws is an LLM Candidate in Public International Law at Koç University. He has been a Oxford Reporter on International Human Rights Law since December 2015.
The Human Rights Committee (the Committee) is a quasi-judicial body. It is then no surprise that the Committee, like many other judicial bodies, has been criticized for allegedly broadening its scope and powers. The newest battleground in the struggle to clarify the scope of the Committee’s powers surrounds Article 26 (the right to non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR).
In this post, I will be examining a string of cases dealing with the admissibility standard imposed by the Committee with regards to a particular issue brought by ethnic Germans and Hungarians against the Czech Republic and Slovakia. To define this standard, I will look at the jurisprudence developed by the Committee’s admissibility decisions as well as dissenting opinions by certain Committee members. Although the cases outlined in this blog relate to Article 26, it is the jurisdictional limits and arguments regarding these cases (or communications) that are the main focus of this discussion. While addressing these communications we will see how the Committee has placed themselves when tackling the critical and controversial issues of admissibility and jurisdiction.
The cases outlined in this blog relate to events that occurred in what was at the time Czechoslovakia. In 1945, after the German annexation of Sudetenland and the occupation of Czechoslovakia, the Czechoslovak government, under the leadership of President Edvard Benes, ratified a series of laws known as the Benes Decrees. These decrees were primarily aimed at reconstructing and restoring the Czechoslovakian government to its pre-WWII state. Another aspect of the Decrees was the denazification of Czechoslovakia which entailed, among other actions, revoking the citizenship of, and confiscating property from, ethnic Germans and Hungarians within Czechoslovak borders. It was not only Germans and Hungarians that had come into Czechoslovakia after the Nazi invasion that suffered, but ones that had lived there for centuries. This reprisal - of sorts - led to the mass deportation of ethnic Germans and Hungarians. Many scholars have argued that these deportations constituted ethnic cleansing.
In 1948, the Communists seized power in Czechoslovakia, but they were eventually ousted during the 1989 Velvet Revolution. On 1 April 1991, Act No. 87/1991 on extra-judicial rehabilitation entered into force by in both the Czech and Slovak Federal Republics. This law was adopted to allow restitution and/or compensation for the loss of property by Czech citizens under the Communist regime between 25 February 1948 and 1 January 1990. This restitution legislation clearly excluded the actions taken by the government under the Benes Decrees: This is the crux of the issue brought by the authors of the majority of Communications taken to the Committee and discussed in this blog. We shall examine each of the major cases that have been brought before the Committee in this regard. The cases center on the argument that the restitution legislation’s temporal limitations are discriminatory under ICCPR Article 26, to the detriment of the Germans and Hungarians that have suffered under the 1945 Decrees.
Jurisprudential Developments Through Admissibility Barring
The initial cases brought to the Committee related to the 1991 Restitution Law itself and the requirements that individuals seeking restitution under the law must have “pure Czech citizenship” and permanent residency within the country (see: Simunek et al. v. Czech Republic and Adam v. Czech Republic). These requirements were found by the Committee to be in violation of Article 26 of the ICCPR since many of the affected Czechoslovak citizens were exiled or stripped of their citizenship as a result of their political leanings during the Communist regime.
Drobek v. Slovakia was the first case brought before the Committee alleging that the 1991 Restitution Law was discriminatory due to its temporal limitation: More specifically, that the law did not cover the confiscation of private property owned by ethnic Germans between 1945 and 1948 which were expropriated under the terms of the Presidential Benes Decrees 12 and 108. The Committee not only found the Communication inadmissible under Article 26 but also went on to state that:
“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…it does not compensate the victims of injustices allegedly committed by earlier regimes.”
The Committee in Drobek further noted that “not every distinction or differentiation in treatment amounts to discrimination within the meaning of articles 2 and 26.” This point was also outlined subsequently in the Committee’s General Comment No. 18 on non-discrimination. The divisions on this particular jurisdictional point were not, however, quelled by this ruling alone. Committee members Cecilia Medina Quiroga and Eckart Klein co-authored a dissenting opinion which stressed that, in their view, the author’s claim did not lack substance and at the very least should not have been deemed inadmissible under Article 26.
The Committee heightened the admissibility standard for communications in Josef Bergauer et al. v. Czech Republic. In this case, the Committee decided it was unable to examine this complaint due to a lack of ratione temporis jurisdiction. The Committee held that the confiscation of the authors’ property in 1945 was “an instantaneous act without continuing effects”. Since the Covenant entered into force on 23 December 1975 and the Optional Protocol on 12 March 1991, the Committee found that the ICCPR could not be applied retroactively to this situation. By not allowing the author’s complaint to meet the admissibility threshold under temporal jurisdiction of the Covenant, the Committee was again therefore unable to consider the facts and substance of the case to determine whether there was any violation under Article 26 of the ICCPR.
The most recent cases before the Committee are B and C v. Czech Republic (2015) and X v. Czech Republic (2015). In both cases the authors relied not only on the 1991 Restitution Law, but also a 2005 Czech Constitutional Court opinion that reaffirmed the temporal scope of restitution to State acts committed after 25 February 1948. The authors emphasized in these cases that the Presidential Decrees of 1945 allowed for the confiscation of agricultural property from all persons of German and Hungarian origin, irrespective of their citizenship. In B and C, the Committee still did not believe that the authors had provided strong enough arguments to overcome the temporal limitations which were linked to national or ethnic origins to justify the claim’s admissibility. A minority of Committee members dissented, stating that the author’s claim under Article 26 was “sufficiently substantiated to deserve consideration on the merits.” The dissenting opinion goes further stating that an undue burden of proof had been placed upon the authors to explain the link between the time limit of the law in question and the alleged discrimination. The dissenting members of the Committee argued that the Committee should require the State party to show that the time limits under the law and its restatements are not discriminatory in and of itself and that they do not have any discriminatory effects.
The “discriminatory effects” doctrine was also brought up in the dissenting opinion in the X Case. The dissent in X further emphasized the narrow interpretation that the Committee was using in relation to Article 26. The dissent pointed out the majority’s conflation of the absence of a prima facie violation with the manifestly ill-founded nature of a claim. The minority dissent notes that:
“While the existence of a violation might not be clearly apparent at first sight, that does not mean that the lack of a violation itself is clear or that the evidence provided by the author to substantiate his claim is so unconvincing that the claim must be declared manifestly ill-founded. However, in this case, the Committee is basing itself on this prima facie assessment to put a stop to the proceedings.”
Jurisprudential Developments Through Growing Dissent
Although the Committee has not yet found any Czech restitution claims admissible due to the temporal limitation argument, it stands to reason that the jurisprudence around this issue and Article 26 is still developing. The dissenting opinions in the X and, B. and C. cases show signs that the Committee might be persuaded to view discrimination carried out by way of State acts not just by the content or text of the law itself but its effects as well. In particular, in the C case, Committee members Olivier de Frouville, Mauro Politi and Víctor Manuel Rodríguez-Rescia stated in their partly dissenting opinion that a “violation of article 26 can also result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate.”
The State party in all of these cases never denied that the 1945 decrees were discriminatory towards German and Hungarian nationals. The difficult question that arises is whether the temporal restrictions set out in the 1991 Restitution Law and the subsequent restatements amount to discrimination or at least have a discriminatory effect by prohibiting German and Hungarian nationals from using such mechanisms?
If we examine General Comment No. 18, the Committee does grapple with the term “discrimination” as discrimination is not explicitly defined and does not contain a specific list of acts that constitute discrimination in the ICCPR. Article 26 prohibits any discrimination and guarantees “all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” In General Comment 18, the Committee looks to other UN human rights treaties to get a better sense of how “discrimination” should be defined.
More specifically, the definition of racial discrimination set out in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and that of discrimination against women found in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) are used to help further define “discrimination” within the context of the ICCPR. General Comment 18 clearly denotes that “discrimination” is:
“Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.” (emphasis mine)
It is then apparent that the discriminatory effect of a law or rule can entail a violation of Article 26.
One case where indirect discrimination was successfully argued in front of the Committee was Derksen v. The Netherlands. In this case, the Committee had to analyze whether the refusal of social security benefits to the author’s daughter constituted prohibited discrimination under Article 26. The Committee recalled:
“That article 26 prohibits both direct and indirect discrimination, the latter notion being related to a rule or measure that may be neutral on its face without any intent to discriminate but which nevertheless results in discrimination because of its exclusive or disproportionate adverse effect on a certain category of persons. Yet, a distinction only constitutes prohibited discrimination in the meaning of article 26 of the Covenant if it is not based on objective and reasonable criteria.”
The Committee in B and C also mentions that if there is a breach of the right to equality before the law, it has to be shown that there was a legitimate purpose and that the acts were based on “objective and reasonable criteria”. Committee members Olivier de Frouville, Mauro Politi and Víctor Manuel Rodríguez-Rescia were quick to note here that the Committee did not allow the State party to thoroughly justify or explain the difference in treatment and it essentially just restated the Czech Constitutional Court opinion, which set out that the temporal restrictions of the law were a matter of public interest.
The admissibility question surrounding these Communications is arguably a very sensitive issue and it is to some extent understandable that the Committee was strict in its interpretation of Article 26. Indeed, the Committee, had it acted differently could risk massive opposition from State parties who might argue that the Committee had overstepped its jurisdictional boundaries. Another consequence could be that State parties might be reluctant to pass any further such restitution legislation if they feel they will be found in violation of the ICCPR if they did not, or could not compensate every individual that they may have harmed in the past. Communications with more controversial topics such as reparations might find themselves in front of the Committee. However, this is an issue that needs to be addressed by the Committee in detail. The reluctance of the Committee to allow for the admissibility of such claims to be considered by them or the State parties seems to elevate the scrutiny of the authors’ claims in these communications to unreasonable levels. The growing dissent amongst Committee members appears to be founded in the Committees’ belief that the burden of proof is placed far too heavily on the authors as opposed to the State parties. In this case it should have been for the Czech Republic and Slovakia to show that the laws in question were not discriminatory in purpose and/or effect. Hiding behind temporal jurisdiction might be a good short-term solution for the Committee, but eventually it will be forced to further define (and possibly expand) the scope of Article 26.