Decision
The Committee has ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
The Committee has noted the State party’s argument that the communication should be declared inadmissible as an abuse of the right of submission of communication because of the long delay between the last decision in the case and the submission of the communication to the Committee. The Committee notes that the Optional Protocol does not establish time limits within which a communication must be submitted. It is thus only in exceptional circumstances that the delay in submitting a communication would lead to inadmissibility of the communication. In the circumstances of the present case, in view of the fact that the author adopted several actions to claim his rights before the courts and that the latest court decision rejecting the author’s claim was some time in November 2003, the Committee considers that the delay is not such as to render the communication inadmissible as an abuse under article 3 of the Optional Protocol.
The Committee refers to its established jurisprudence that, for purposes of the Optional Protocol, the author of a communication need not exhaust domestic remedies when these remedies are known to be ineffective. The Committee notes that because of the preconditions of law No. 87/1991, the author could not claim restitution at the time because he no longer had Czech citizenship. In this context, the Committee notes that other claimants have unsuccessfully challenged the constitutionality of the law in question; that earlier views of the Committee in similar cases remain unimplemented; and that even despite those complaints, the Constitutional Court has upheld the constitutionality of the Restitution Law. The Committee therefore concludes that no effective remedies were available to the author.
The Committee further recalls its Views in the cases of Simunek, Adam, Blazek, Des Fours Walderode and Gratzinger, where it held that article 26 of the Covenant 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 the above cases equally applies to the author of the present communication and that the application to the author of the citizenship requirement laid down in Act No. 87/1991 violated his rights under article 26 of the Covenant.