Mr. Bohumir Marik v. Czech Republic

The author of the communication is Bohumir Marik, a US and Czech citizen, born in Plzen, Czechoslovakia, currently residing in the United States. The author claims to be a victim of a violation by the Czech Republic³ of article 26 of the International Covenant on Civil and Political Rights (the Covenant). He is not represented by counsel.

3. 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. ↩

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. He invokes the jurisprudence of the Committee in the cases of Simunek v. Czech Republic ⁴ and Adam v. Czech Republic⁵, where it found that the requirement of citizenship in Act 87/1991 was unreasonable, and that its effects constituted a violation of article 26 of the Covenant.

4. See Communication No.516/1992, Simunek v. Czech Republic, Views adopted on 19 July 1995, paragraphs 11.6 and 11.8 ↩
5. See Communication No.586/1994, Adam v. Czech Republic, Views adopted on 23 July 1996, paragraphs 12.5 and 12.8 ↩

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. The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement for purposes of article 5, paragraph 2(a), of the Optional Protocol. With respect to the requirement of exhaustion of domestic remedies, the Committee notes that the State party has challenged the admissibility of the part of the communication relating to the property in Plzen. The Committee recalls that only such remedies have to be exhausted which are both available and effective. The Committee notes that although the author failed to file a constitutional complaint within the sixty days time-limit set by the law in the case of the property in Plzen, the author did file such a complaint for the restitution of the property in Letkov. The Committee recalls its relevant jurisprudence⁶ and notes that the author’s constitutional claim on the property in Letkov was rejected on 12 May 1998; that other claimants in similar situations have unsuccessfully challenged the constitutionality of Act 87/1991; and that earlier Views of the Committee⁷ have remained unimplemented. The Committee considers that, in the absence of legislation enabling the author, who did not hold Czech citizenship in 1991, to claim restitution, a constitutional motion filed within the statutory deadlines in the author’s case would not have offered him a reasonable chance of obtaining effective redress and therefore would not have constituted an effective remedy for the purpose of article 5, paragraph 2 (b), of the Optional Protocol. The Committee notes that the State party has not contested the admissibility of the part of the communication relating to the restitution of the property in Letkov. It therefore decides that the communication is admissible in relation to both properties, inasmuch as it appears to raise issues under article 26 of the Covenant, and proceeds to its examination on the merits.

6. See Communication No.586/1994, Adam v. Czech Republic, Views adopted on 23 July 1996, paragraph 6.5 and 11.2 and Communication No.857/1999, Blazek v. Czech Republic, Views adopted on 12 July 2001, paragraph 5.3 ↩
7. 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, Communication No.857/1999, Blazek v. Czech Republic, Views adopted on 12 July 2001 and Communication No.747/1997, Des Fours Walderode v. Czech Republic, Views adopted on 30 October 2001 ↩

The Committee recalls its Views in the cases of Simunek, Adam, Blazek and Des Fours Walderode⁹, where it held that article 26 of the Covenant had been violated: “the authors in that case and many others in analogous situations had left Czechoslovakia because of their political opinions and had sought refuge from political persecution in other countries, where they eventually established permanent residence and obtained a new citizenship. Taking into account that the State party itself is responsible for the author’s ... departure, it would be incompatible with the Covenant to require the author … to obtain Czech citizenship as a prerequisite for the restitution of [his] property or, alternatively, for the payment of appropriate compensation”¹⁰. The Committee further recalls its jurisprudence¹¹ that the citizenship requirement in these circumstances is unreasonable. In addition, the State party’s argument that the citizenship condition was included in the law to incite owners to take good care of the property after the privatisation process has not been substantiated.

9. See footnote 8 ↩
10. See Communication No.586/1994, Adam v. Czech Republic, Views adopted on 23 July 1996, paragraph 12.6 and Communication No.857/1999, Blazek v. Czech Republic, Views adopted on 12 July 2001, paragraph 5.8 ↩
11. See Communication 516/1992, Simunek v. Czech Republic, Views adopted on 19 July 1995, paragraph 11.6 ↩

The Committee considers that the precedent established in the above cases also applies to the author of the present communication. The Committee notes that in the case of the Letkov property, the State party argues that the author did not fulfil the third requirement, i.e. proving that the property was acquired unlawfully by the present owners. However, the Committee further notes that although the lower courts took this element into consideration, the Supreme Court based its decision only on the non-fulfilment of the citizenship precondition. In the light of these considerations, the Committee concludes that the application to the author of Act 87/1991, which lays down a citizenship requirement for the restitution of confiscated property, violated his rights under article 26 of the Covenant. 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 International Covenant. 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, and in the case of the Plzen property, restitution, or, in the alternative compensation. 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. 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. [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.]