a public authority may submit a motion for review of
the legality of such decision.
provisions enabling restoration of Czechoslovak
citizenship. Applications for restoration of
citizenship were to be lodged with the appropriate
authority within six months of the decree being
issued. Since the author and his family did not avail
themselves of this opportunity to have their
citizenship restored to them, the State party submits
that domestic remedies have not been exhausted.
4.6 With regard to the author's argument that the
violation of his rights continues under the existing
Czech legislation, the State party claims that the
author could have, on the basis of the direct
applicability of the Covenant in Czech legislation,
brought action before the Czech courts. Moreover,
the State party denies that the author's rights were
ever violated and consequently the alleged violations
cannot continue at present either.
4.3 The State party challenges the author's
argument that he and his family did not have any real
opportunity to oppose their removal from
Czechoslovakia. The State party argues that the
author and his family left the country not due to
coercion but by their own choice. Since they were
still Czechslovakian citizens at the time they left the
country, they could have made use of the remedies
available to all nationals. They also failed to exhaust
domestic remedies against the deprivation of their
citizenship. With reference to the principle
ignorantia legis neminem excusat, the State party
maintains that the legal status of the author and his
family changed due to omission on their part and
that the possible objection that they were not
informed about the appropriate legislation is
irrelevant.
4.7 In conclusion, the State party requests the
Committee to declare the communication
inadmissible on the grounds that the author has
failed to exhaust domestic remedies, and on the
ground that the alleged violations occurred before
the entry into force of the Covenant and the Optional
Protocol thereto.
Author's comments
5.1 In his comments on the State party's
submission, counsel recalls that it is not the author's
fault that he is no longer a Czech citizen nor is a
resident of the Czech Republic, because he was
stripped of his citizenship and was expelled by the
State party.
4.4 With regard to the expropriation of his
family's property, and the ensuing alleged violation
of his Covenant rights, the State party points out that
it has only been bound by the Covenant since its
entry into force in 1976, and argues that the
Covenant can thus not be applied to events that
occurred in 1945-1946. With regard to the author's
argument that the Constitutional Court's judgement
of 8 March 1995 reaffirms the violations of the past,
and makes any appeal to the Courts futile, the State
party points out that following the said judgement
decree No. 108/1945 no longer operates as a
constitutional regulation and that the compatibility
of the decree with higher laws (such as the
Constitution and the Covenant) can thus be
challenged before the courts. In this context, the
State party points out that Constitutional Law
No.2/1993 (Charter of Fundamental Rights and
Freedoms) contains a prohibition of any form of
discrimination. The State party therefore challenges
the author's statement that exhaustion of domestic
remedies would be futile. According to the State
party, the author's statement demonstrates ignorance
of Czech law and is incorrect.
5.2 Counsel argues that the State party is
likewise estopped from claiming that the author or
his family could have regained his citizenship
pursuant to an application. Counsel recalls that at
the time the author and his family, despite the fact
that they were members of the Social Democratic
Party and anti-fascists, were already expelled by
the State party (July 1945) which had also
confiscated all of their property, as a result of
which they were totally destitute. As a
consequence, the remedies existing in 1945 were in
practice not available to the author and his family,
nor to most Germans. Counsel submits that if the
State party contends that persons in the situation of
the author could have availed themselves of
effective domestic remedies, it should provide
examples of those who did so successfully.
5.3 The author points out that at the time of the
expulsion of his family, they were treated as total
outlaws. Thousands of Germans were detained in
camps. According to the author, not only was a
complaint to the Czech authorities futile, but in
many cases when people did complain, they were
subjected to physical abuse.
4.5 The State party submits that international
treaties on human rights and fundamental freedoms
binding on the Czech Republic are immediately
applicable and superior to law. The State party
explains that its Constitutional Court has the power
to nullify laws or regulations if it determines that
they are unconstitutional. Anyone who claims that
his or her rights have been violated by a decision of
5.4 The author acknowledges that the Covenant
entered into force for Czechoslovakia only in 1976.
However, he contends that the restitution legislation
of 1991 is discriminatory, because it excludes
restitution for the German minority. Furthermore, he
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