SVU

CZECHOSLOVAK SOCIETY OF ARTS AND SCIENCES

European Court of Human Rights
and the United Nations Human Rights Committee
Comparative Study

Jan Sammer

The Universal Declaration of Human Rights was adopted in the aftermath of WW II to codify human rights and to protect the humanity from future repetition of past crimes.

Both the European Court of Human Rights and the United Nations Human Rights Committee are governed by it. The European Convention on Human Rights is directly derived from the Universal Declaration as stated in its preamble:

"The governments signatory to the Convention, being members of the Council of Europe, Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948,Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared, have agreed as follows:”

Even though these norms are generally based on international law and customary international law the two institutions responsible for defining, observing, implementing and enforcing human rights have two different philosophies, sets of rules and distinct interpretations. Their decisions differ, often diametrically. This incongruity, apart of being a contradiction in itself, is bound to introduce confusion into the very purpose for which these two institutions were created.

If the Convention is based on the Universal Declaration of Human Rights, it would appear that the Convention, its articles and its interpretation by the European Court of Human Rights should not contravene the Universal Declaration of Human Rights and its interpretation by the United Nations Human Rights Committee.

However, some articles of the Convention and their interpretations by the European Court of Human Rights and the articles and interpretation of the Optional Protocol by the UN Human Rights Committee’s differ substantially. Examples:

UN Human Rights Committee: Optional Protocol, Article 5, 2b): The Committee shall not consider communication unless the individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably long.

European Court of Human Rights: The Convention in its Article 35 states that the Court may only deal with the matter after all domestic remedies have been exhausted. The substantial difference is in the word available. Whereas the UN Committee states in its decision 586/94, art. 6.5 that “Only such remedies have to be exhausted which are both available and effective”, the Czech section of the European Court repeatedly insists that the claimant has to exhaust all possible appeals all the way up to the Czech Constitutional Court even though, as in the case of American Czechs, he has no hope of success due to the condition of citizenship in the restitution laws.

The UN Human Rights Committee, in its decision 516/92, states that citizenship, as a precondition to restitution of confiscated property is incompatible with the non-discrimination requirement of Article 26 of the Covenant on Civil and Political Rights.

The European Court, up to this date, has not ruled on the admissibility of appeals of the Decisions of the Czech Constitutional Court, which rejected all claims of former citizens on the basis of lack of citizenship.

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The UN Committee in its Decision 586/1994, Article 6.3 has also considered whether the violations alleged can be examined ratione temporis. It notes that although the confiscations took place before the entry into force of the Covenant and of the Optional Protocol for the Czech Republic, the new legislation that excludes claimants who are not Czech citizens has continuing consequences subsequent to the entry into force of the Optional Protocol for the Czech Republic, which could entail discrimination in violation of article 26 of the Covenant.

The European Court held in its Decision 33071/96 and a few previous ones that “it can examine applications only to the extent that they relate to events which occurred after the Convention entered into force with respect to the relevant Contracting Party. The property of the Applicant was expropriated in June 1949; therefore the Court is not competent ratione temporis to examine the circumstances of the expropriation or the continuing effects produced by it up to the present date. In this regard the Court refers to and confirms the Commission’s established case-law according to which deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of right”.

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The Czech Constitutional Court repeatedly stated in its Decisions 117/93, 117/96, 67/97 and 363/98 that although it cannot decide in favour of the victim, the original ownership was never lost due to Act 119/1990, which cancelled the confiscating verdicts ex tunc.

The European Court maintains that “The hope of recognition of the survival of an old property right, which it has long been impossible to exercise effectively, could not be recognized as a ‘possession’ within the meaning of Article 1 of Protocol No. 1”. Nor did the applicant have under the applicable legislation a right or a claim amounting to a legitimate expectation of obtaining restitution such as could be qualified as a ‘possession’ within the meaning of Article 1 of Protocol No. 1.

Is the European Court aware of these decisions of the Czech Constitutional Court?  Does the Court take them into account?  And if so, how ?

The Court   omits to name the foundation of any “legal” principle which allows legal title of ownership to pass without the consent of the owner to another (person or state) validly, just because the owner was deliberately hindered to effectively exercise his rights for a long time.

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These are just few examples of discrepancies between the two international bodies supposed to oversee and rule on human rights as defined by the Universal Declaration of Human Rights.

We believe that such a difference in opinion between those two institutions is not only unacceptable but jeopardises all effort to harmonize laws within Europe. By no means it is universal as stated in the European Convention.

We also believe that the European Court of Human Rights and/or the European Council may be under pressure by governments. Since 1996 the Court decided just one case, which, although untypical, it calls a “pilot case” or a “test case” which is supposed to guide the Court in its future decisions on restitution claims. 

The test case is Malhouse, Application 33071/96. We  raise serious objection because the case is altogether untypical. The Czech restitution cases fall into several distinct categories according to different restitution laws, different conditions specified in those laws and different decisions of the Czech Constitutional Court.

We believe that the decision of the European Court of Human rights in the matter of Czech restitution claims will have a great impact on the interpretation of the Universal Declaration of Human Rights in Europe and therefore on the future of the European Union.

We are urging the two institutions to consult with each other and to reconcile their conflicting views.

June 12, 2001.

Jan Sammer
secretary
Czech Coordinating Office
1103-100 Antibes Drive
Toronto Ontario
Canada M2R 3N1
Tel. 416-665-7324
jan.sammer@czechoffice.org                                                    

 

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