and contends that the author's presentation of the
facts is misleading. After the democratization
process begun in November 1989, the Czech and
Slovak Republic, and subsequently the Czech
Republic, made a considerable effort to remove
some of the property injustices caused by the
communist regime. The endeavour to return
property, as stipulated in the Rehabilitation Act, was
in part a voluntary and moral act of the Government
and not a duty or legal obligation. "It is also
necessary to point out the fact that it was not
possible and, with regard to the protection of the
justified interests of the citizens of the present Czech
Republic, even undesirable, to remove all injuries
caused by the past regime over a period of forty
years."
which was rejected for lack of citizenship and
permanent residence. Moreover, their claim was by
virtue of inheritance. He further complains about
unreasonably prolonged proceedings in the Czech
Republic, in particular that whereas their letters to
the Czech Government reached the Czech authorities
within a week, the replies took 3 to 4 months.
9.2 The precondition of citizenship for restitution
or compensation should not be interpreted as a
violation of the prohibition of discrimination
pursuant to article 26 of the Covenant. "The
possibility of explicit restriction to acquiring the
ownership of certain property by only some persons
is contained in article 11, paragraph 2, of the Charter
of Fundamental Rights and Freedoms. This article
states that the law may determine that certain
property may only be owned by citizens or legal
entities having their seat in the Czech and Slovak
Federal Republic. In this respect, the Charter speaks
of citizens of the Czech and Slovak Federal
Republic, and after January 1, 1993, of citizens of
the Czech Republic."
11.1 The State party has requested that the
Committee revise its decision on admissibility on the
grounds that the author has not exhausted domestic
remedies. The Committee has taken into
consideration all arguments presented by the State
party and the explanations given by the author. In the
circumstances of this case, considering that the
author is abroad and that his lawyers are in the
Czech Republic, it would seem that the imposition of
a strict statute of limitations for lodgings claims by
persons abroad is unreasonable. In the author's case,
the Committee has taken into account the
circumstance that he has been trying to assert his
inheritance claim since 1985 and that his Prague
attorneys have been unsuccessful, ultimately not
because of the statute of limitations but because the
Rehabilitation Act, as amended, stipulates that only
citizens can claim restitution or compensation. Since
the author, according to his last submission, which
has not been disputed by the State party (para. 10.3)
is not a Czech citizen, he cannot invoke the
Rehabilitation Act in order to obtain the return of his
father's property.
10.3 As to their Czech citizenship, they claim that
the consulate in Australia informed them that if both
mother and father were Czech citizens, the children
were automatically Czech citizens. However, the
Czech Government subsequently denied that
interpretation of the law.
Review of admissibility
9.3 The Czech Republic considers the restriction
to exercising rights of ownership by imposing the
condition of citizenship to be legitimate. In this
connection, it refers not only to article 3,
paragraph 1, of the Charter of Fundamental Rights
and Freedoms, containing the non-discrimination
clause, but above all to the relevant clauses of
international human rights treaties.
11.2 In the absence of legislation enabling the
author to claim restitution, recourse to the
Constitutional Court cannot be considered an
available and effective remedy for purposes of
article 5, paragraph 2 (b), of the Optional Protocol. In
the circumstances of this case, such a remedy must be
considered as an extraordinary remedy, since the right
being challenged is not a constitutional right to
restitution as such, bearing in mind that the Czech and
Slovak legislature considered the 1991 Rehabilitation
Act to be a measure of moral rehabilitation rather than
a legal obligation (para. 9.1). Moreover, the State
party has argued that it is compatible with the Czech
Constitution and in keeping with Czech public policy
to restrict the ownership of property to citizens.
The author's comments
10.1 As to the facts of the claim, the author
explains that in January 1949 his father was ordered
out of his business, which was confiscated. He had
to hand over the books and the bank accounts and
was not even able to take his own personal
belongings.
As
to
his
departure
from
Czechoslovakia, he was not able to emigrate legally
but had to cross the border illegally into West
Germany, where he remained in a refugee camp for a
year before being able to emigrate to Australia.
10.2 He disputes the State party's contention that
he did not avail himself of domestic remedies. He
reiterates that he himself and his attorneys in Prague
have tried to assert the claim to inheritance since his
father died, in 1985, without success. In December
1991, he and his brothers submitted their claim,
11.3 Under these circumstances, the Committee
finds no reason to set aside its decision on
admissibility of 16 March 1995.
124
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