may obtain restitution or compensation for properties
that were confiscated by the Government of
Czechoslovakia in the period from 1948 to 1989.
Mr. Schlosser and his family do not qualify for
compensation under this law, because their
properties were confiscated in 1945, and because
they lost their Czech citizenship as a result of Benes
Decree No. 33 and their residence because of their
expulsion. Moreover, he points out that whereas
there is a restitution and compensation law for
Czechs, none has been enacted to allow any form of
restitution or compensation for the German minority.
This is said to constitute a violation of article 26 of
the Covenant.
before the courts, to non-discrimination and to the
enjoyment of minority rights. The continuing
violation has been renewed by the judgement of
8 March 1995 of the Constitutional Court of the
Czech Republic, which reaffirms the continued
validity of the Benes Decrees, which were applied to
the author and his family. The validity of the Benes
Decrees has been repeatedly confirmed by Czech
authorities, including the Czech Prime Minister,
Vaclav Klaus, on 23 August 1995.
3.2 Mr. Schlosser claims that over the past
decades he has been deprived of the right enunciated
in article 12, paragraph 4, of the Covenant, that is to
return to his homeland and settle there, where his
parents and grandparents were born and where his
ancestors are buried. Moreover, he claims that he has
been deprived of the right to exercise his cultural
rights, in community with other members of the
German ethnic group, to worship in the churches of
his ancestors and to live in the land where he was
born and where he grew up. In this context he also
invokes the right to return enunciated by the United
Nations Security Council with regard to expellees
and refugees from Bosnia, Croatia and Serbia
(Security Council Resolutions Nos. 941/1994,
947/1994, 981/1995 and 1009/1995).
3.6 With regard to the application of the
Covenant to the facts of his case, Mr. Schlosser
points out that although the Benes Decrees date back
to 1945 and 1946, they have continuing effects
which in themselves constitute violations of the
Covenant. In particular, the deprivation of Czech
citizenship has continuing effects and prevents him
and members of his family from returning to the
Czech Republic except as tourists. Current Czech
law does not provide a right for former Czech
citizens of German ethnic origin to return and settle
there. Moreover, the Benes Decrees were reaffirmed
in the judgment of the Czech Constitutional Court of
8 March 1995. The discriminatory law on restitution
of 1991 also falls within the period of application of
the Covenant and the Optional Protocol to the Czech
Republic.
3.3 With regard to the exercise of his minority
rights in his homeland, Mr. Schlosser points out that
no State is allowed to frustrate the exercise of the
rights of its subjects by depriving them of citizenship
and expelling them.
3.7 As to the requirement of exhaustion of
domestic remedies, the author states that not only
does Czech legislation not establish a recourse for
persons in his situation, but, moreover, as long as the
discriminatory Benes Decrees are held to be valid
and constitutional, any appeal against them is futile.
In this context the author refers to a recent challenge
of the Benes Decrees, which an ethnic German
resident in the Czech Republic brought before the
Constitutional Court of the Czech Republic. On
8 March 1995, the Court ruled that the Benes
Decrees were valid and constitutional. Therefore, no
suitable and effective remedies exist in the Czech
Republic.
3.4 Mr. Schlosser specifically complains of the
denial of equality before the courts, in violation of
article 14, and of discrimination, in violation of
article 26. He points out that the enforced
expatriation in 1945, the expropriations and the
expulsions were carried out in a collective way, and
were not based on conduct but rather on status. All
members of the German minority, including Social
Democrats and other antifascists were expelled and
their property was confiscated, just because they
were German; none of them were given the
opportunity of having their rights determined by a
court of law. In this context he refers to the policy of
ethnic cleansing in the former Yugoslavia, which has
been recognized to be in violation of international
law. He also refers to the Nazi expatriation and
expropriation of German Jews, which were arbitrary
and discriminatory. He points out that while Nazi
laws have been abrogated and restitution or
compensation has been effected for Nazi crimes,
neither Czechoslovakia nor the Czech Republic has
offered restitution or compensation to the
expatriated, expropriated and expelled German
minority.
State party's admissibility observations
4.1 By submission of 15 February 1996, the State
party notes that the author is a German citizen
residing in Germany. At the time of submission of
the communication, he was not a citizen nor a
resident of the Czech Republic and thus did not hold
any legally relevant status in the territory of the
Czech republic.
4.2 The State party recalls that Decree No. 33 of
2 August 1945, through which the author was
deprived of his Czechoslovak citizenship, contained
3.5 Mr. Schlosser notes that by virtue of Law
No. 87/1991 Czech citizens with Czech residence
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