EUROPEAN PARLIAMENT

Committee on Petitions

4 February 2004

NOTICE TO MEMBERS

Petition 270/2003 by Dagmar Karsch (German and Czech), on behalf of the ‘Czech Coordination Office’, on discrimination based on nationality

1. Summary of petition

The petitioner, an executive member of the above organisation, refers to Czech legislation regarding the return of property nationalised under the Communist regime, a measure from which only Czech citizens are benefiting. She indicates that numerous former Czech nationals who fled the Communist regime and thereby forfeited their citizenship are able to claim back their former property, something which the petitioner regards as discrimination based on nationality and hence an infringement of the European Convention on Human Rights.

2. Admissibility

Declared admissible on 30 October 2003 . Information requested from Commission under Rule 175(4).

3. Commission reply received on 14 January 2004

'Mrs Karsch had already written to the Commission on 27 November 2002 , and received a personal letter of reply from Commissioner Verheugen. Her letter must be seen in the context of the public debate regarding the decrees issued by the Czechoslovak President Edvard Beneš in 1945-46 and relevant Czech(oslovak) restitution legislation of the 1990s. Those decrees stripped most Czechoslovak citizens of German or Hungarian origin of their Czechoslovak citizenship and their property, leading to mass expulsions of these population groups in 1945-46, whereas the restitution laws largely limited access to restitution to claimants holding Czech(oslovak) citizenship.

Commission investigation

Following a joint investigation between the European Commission and the Czech Republic from April to October 2002, the Commission concluded that Presidential Decrees and the restitution legislation do not constitute an obstacle to the Czech Republic ’s accession to the Union . In its “Summary Findings” of 18 October 2002 , the Commission concluded that the Czech restitution legislation of the 1990s, while it may have included discriminatory aspects not compatible with the acquis communautaire, will not come into conflict with Community legislation upon accession since all deadlines for filing restitution claims have expired.

European Court of Human Rights findings

Regarding allegedly discriminatory restitution jurisdiction during the 1990s, it is correct that the European Court of Human Rights in Strasbourg admitted certain cases but eventually found that a citizenship requirement alone as a precondition to property restitution did not constitute a violation of human rights under the European Convention on Human Rights and that the chance to obtain restitution of confiscated property was not protected, either.

European Parliament report

The European Parliament discussed the decrees and the relevant restitution legislation on several occasions in the context of its reports on the progress made by candidate countries towards accession. Parliament’s resolution of 20 November 2002 (rapporteur Mr Elmar Brok MEP) concluded that “the presidential decrees do not pose, from the point of view of Community law, an obstacle to Czech accession”. Parliament had also commissioned a legal opinion by Prof. Jochen Frowein, with supplementary opinions from Prof Ulf Bernitz and Lord Kingsland.

Commission appraisals of the Czech judicial system

The fall of the Communist regime was brought about by courageous action on the part of Czechoslovak society during the so-called Velvet Revolution. The democratically constituted Czech Republic has since undertaken significant efforts to correct acts of injustice inflicted by the former communist regime on its citizens. For instance, most agricultural property unlawfully confiscated by the former regime has meanwhile been restored. It is clearly not possible to correct all the wrongdoings of the past and, therefore, it is inevitable that not all legitimate grievances will be fully satisfied. It is also clear that it is impossible, after 40 years of dictatorship, to establish a faultless judiciary system overnight.

In its Opinion on the Czech Republic’s accession, issued in 1997, the Commission concluded that the Czech Republic presents the characteristics of a democracy, with stable institutions guaranteeing the rule of law, human rights and respect for and protection of minorities.

The Commission’s 2002 Report on the Czech Republic ’s progress towards accession (COM SEC (2002) 1402) of 9 October concluded that the Czech Republic continues to fulfil the Copenhagen criteria. Nevertheless, the Report pointed out that the reform of the judiciary and the fight against corruption required further efforts. Similar conclusions were drawn with respect to several other accession countries. The Commission is convinced that the considerable public attention received by such reports and resulting political pressure provide the best means of addressing these issues.

The 2002 Report (see page 33) considered that the Czech Republic “has made considerable progress in further consolidating and deepening the stability of its institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities… The reform of the judiciary has made further progress, in particular with the introduction of a new system of administrative law and the implementation of the streamlined Criminal Proceedings Code. However, further efforts are needed to reduce the length of court proceedings, particularly in civil cases. Overall, the recent reforms need to be underpinned by additional human and material resources as well as increased judicial training. Some additional legal and organisational measures have been taken to fight against corruption and economic crime, which remain a cause for serious concern. Efforts need to be increased. In particular it is necessary to ensure that the relevant law enforcement institutions receive additional human and technical resources. A recent government report highlights the importance of ensuring full support from political forces in this field. “

In 2003, the Commission issued Comprehensive Monitoring Reports on all acceding countries. As concerns judicial reform in the Czech Republic , the report read (page 13): “The fundamental principle of independence of the judiciary is anchored in the Czech constitution of 19993, although the Minister of Justice remains responsible for appointing, transferring and terminating the appointment of the president and vice-presidents of courts…. Access to justice is satisfactory, however not all citizens may be fully aware of their entitlement…. The speed and efficiency of the enforcement of civil judgements have been significantly improved …. A key area for further improvement remains the reduction in length of court proceedings.”

To sum up, judicial reform is an ongoing process, and progress is being made. As a Member State of the European Union from 1 st May 2004 , the Czech Republic is expected to continue improving its judicial system.

Conclusions

Both the European Parliament and the Commission have paid particularly close attention to the Beneš decrees and the restitution issue and concluded that they do not pose an obstacle to Czech accession.

The Czech Republic fulfils the Copenhagen criteria. The Commission considers that the Czech Republic will be able to assume the obligations of membership in accordance with the envisaged timeframe.'