Mrs. Ivanka Kohoutek v. The Czech Republic

The Optional Protocol to the International Covenant on Civil and Political Rights (Optional Protocol) entered into force for the Czech Republic on 22 February 1993.

The author claims to be a victim of a violation of article 26 of the Covenant, as the citizenship requirement of the Act No. 87/1991 constitutes unlawful discrimination. She invokes the jurisprudence of the Committee in the case of Marik v. Czech Republic³ and Kriz v. Czech Republic⁴, in which the Committee found a violation of article 26 by the State party.

3. Communication No. 945/2000, Marik v. Czech Republic, Views adopted on 26 July 2005. ↩
4. Communication No. 1054/2002, Kriz v. Czech Republic, Views adopted on 1 November 2005. ↩

On 28 September 2006, the author commented on the State party’s response. She argues that they escaped from communist Czechoslovakia in 1981, and that the Jihlava District Court’s judgment of 23 February 1982 violated article 12, paragraph 2, of the Covenant. With regard to Act No. 119/1990 on Judicial Rehabilitation, she contends that it did not spell out any condition of citizenship for persons rehabilitated and that such conditions have been incorporated into Act No. 87/1991 on Extra-Judicial Rehabilitation, enacted 14 months later.

Regarding the argument that the submission of her communication amounts to an abuse of the right of submission, the author denies the existence of such an abuse and recalls that there is no deadline for submitting a communication specified in the Optional Protocol. She was crushed by the miscarriage of justice in the court judgments, and was exhausted emotionally and financially. She filed her complaint before the Committee as soon as she had been notified of the Committee’s Views in Communications No. 945/2000, Marik v. Czech Republic, Views adopted on 26 July 2005; and No. 1054/2002, Kriz v. Czech Republic, Views adopted on 1 November 2005.

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.

As required by article 5, paragraph 2(a), of the Optional Protocol, the Committee has ascertained that a similar complaint submitted by the author was declared inadmissible as manifestly ill-founded by a Committee of three judges of the European Court for Human Rights on 10 September 2002 (application No. 58716/00). Article 5, paragraph 2(a), however, does not preclude the Committee from examining the present communication as the issue is no longer being examined by the European Court and the State party has formulated no reservation under article 5, paragraph 2(a) of the Optional Protocol.

With regard to the author’s claim that the Jihlava District Court’s judgment of 23 February 1982 violated article 12, paragraph 2, of the Covenant, the Committee notes that the claim was not part of the original communication upon which the State party submitted comments. The Committee considers that the author has not sufficiently substantiated her allegations under article 12 for the purposes of admissibility and finds this part of the communication inadmissible under article 2 of the Optional Protocol.

The Committee notes also the State party’s argument that the communication should be considered inadmissible as constituting an abuse of the right to submit communications under article 3 of the Optional Protocol, in view of the delay in submitting the communication to the Committee. The State party recalls that the author waited three years and five months after the decision of the European Court of Human Rights before submitting her complaint to the Committee. In the instant case, and having regard to the reasons given by the author, the Committee does not consider the delay to amount to an abuse of the right of submission.⁷ It therefore decides that the communication is admissible in as far as it appears to raise issues under article 26 of the Covenant.

7. See Communication No. 1305/2004, Victor Villamon Ventura v. Spain, Views of 31 October 2006, para. 6.4, Communication No. 1101/2002, Alba Cabriada v. Spain, Views of 1 November 2004, para. 6.3. ↩

The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.

The issue before the Committee is whether the application to the author of Act No. 87/1991 amounted to discrimination, in violation of article 26 of the Covenant. The Committee reiterates its jurisprudence that not all differentiations in treatment can be deemed to be discriminatory under article 26. A differentiation which is compatible with the provisions of the Covenant and is based on objective and reasonable grounds does not amount to prohibited discrimination within the meaning of article 26.⁸

8. See Communication No. 182/1984, Zwaan-de Vries v. The Netherlands, Views adopted on 9 April 1987, paragraph 13. ↩

The Committee recalls its Views in the cases of Adam, Blazek, Marik, Kriz, Gratzinger and Ondracka⁹ where it held that article 26 had been violated, and that it would be incompatible with the Covenant to require the authors to meet the condition of Czech citizenship for the restitution of their property or alternatively for its compensation. The Committee considers that the principle established in these cases also applies in the case of the author of the present communication, and that the application by the domestic courts of the citizenship requirement violated her rights under article 26 of the Covenant.

9. Communication No. 586/1994, Adam v. Czech Republic, Views adopted on 23 July 1996, paragraph 12.6; Communication No. 857/1999, Blazek v. Czech Republic, Views adopted on 12 July 2001, paragraph 5.8; Communication No. 945/2000, Marik v. Czech Republic, Views adopted on 26 July 2005, paragraph 6.4; Communication No. 1054/2002, Kriz v. Czech Republic, Views adopted on 1 November 2005, paragraph 7.3; Communication 1463/2006, Gratzinger v. Czech Republic, Views adopted on 25 October 2007, paragraph 7.5; and Communication No. 1533/2006, Ondracka v. Czech Republic, Views adopted on 2 November 2007, paragraph 7.3. ↩

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 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, including compensation if the property cannot be returned. 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 that a violation has been established, the Committee wishes to receive from the State party, within 180 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 also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]