The applicants complained that these requirements constituted unlawful discrimination since they only benefited “pure Czechs living in the Czech and Slovak Federal Republic” (para. 3.1). In effect, the Act asserted that those who had fled Czechoslovakia had to take permanent residence in the country to be eligible for restitution. It is worth noting that, at the time, more than 80% of confiscated property belonged to individuals who did not meet the residency requirement.
Two more complaints with similar facts were dealt with in this judgment:
- the requirements of Act 87/1991 constitute unlawful discrimination, contrary to Article 26 of the International Covenant on Civil and Political Rights (ICCPR); and
- where legal title has not been lost, the law should not be applied because restitution of property does not apply.
Summary of holding
Primarily, the Committee noted that the seizure and sale of property had happened in the 1970s and 1980s, when the Optional Protocol had yet to be ratified by the Czech Republic. The Committee also noted that the ICCPR did not protect the right to property. In this context, the Committee stated that the question before them was whether the law was discriminatory within the meaning of Article 26 of the ICCPR (all persons are equal before the law and are entitled without any discrimination to the equal protection of the law).
With regard to Act 87/1991 and its citizenship and residency requirements, the Committee reiterated that not all differentiation in treatment can be deemed as discriminatory under Article 26 (Zwaan de Vries v The Netherlands, No. 182/1984). However, that differentiation in treatment would have to be based on reasonable grounds and be fully compatible with the provisions of the Covenant.
The Committee contended that as original entitlement to the property had not been decided by citizenship or residence, the Act’s requirements and conditions were inherently unreasonable. The Committee stressed that since it was the fault of the State that the applicants had fled the country as the result of political persecution, it would be incompatible with the Covenant to then demand their permanent residence return for redress or restitution of their property.
The State argued that the legislators had no discriminatory intent when enacting Act 87/1991, but the Committee stressed this need not be the sole factor when determining a breach of Article 26, because the effects of the Act were discriminatory.
In light of the above, the Committee found that Act 87/1991 had indeed violated the applicants’ rights under Article 26 ICCPR.
Potential takeaways for future climate migration litigation
- Discriminatory legislation. The Simunek case illuminates some of the ICCPR jurisprudence concerning discriminatory legislation. This is relevant when considering temporary climate migration: often, those who have fled their country will face discrimination and unfair legislation imposed upon their return, regardless of context.
- Fault of the State. The Committee stressed that it was the fault of the State that the victims had fled due to their political persecution, and as such, it would be unfair to impose the harsh restrictions of the Act upon them. This finding is significant as it suggests that when considering the unjust or discriminatory nature of legislation, the Committee might contemplate how responsible the State is for the relevant situation and circumstances experienced by the returning applicants.