Decrees and the Czech Restitution Laws from a Human Rights and European Community Law Perspective

The BeneÅ¡-Decrees and the Czech Restitution Laws from a Human Rights and European Community Law Perspective

Konrad Biihler, Gregor Schusterschitz and Michael Wimmer'

I. Introduction

In the years preceding the accession of the Czech Republic to the European Union on 1 May 2004, the discussion of the so-called Benes-Decrees and the expulsion of the Sudeten Germans from the former Czechoslovakia intensified not only in the Czech Republic, Germany and Austria, but also on the European level. The EC Commis- sion and the European Parliament have repeatedly dealt with this topic throughout the preparation of the accession. They have instructed their respective legal departments to examine the compatibility of the Decrees and the relevant restitution laws with the political accession criteria and Community law. The Commission appointed a group of experts who discussed open questions in collaboration with Czech government representatives and submitted its conclusions on 14 October 2001.2 The Parliament commissioned the international lawyers Frowein, Bernitz and Lord Kingsland to prepare an external legal opinion. Their conclusions were published on 2 October 20021, and formed the basis for the Parliament's opinion on the

1 The authors are employees of the Austrian Ministry for Foreign Affairs. This contribution is based on the results of research for a legal opinion issued in June 2002. It solely reflects the authors' personal views. The authors thank Jakob Wurm (University of Vienna) for translating the contribution as it was published in the Ã�sterreichisches Jahrbuch fÃ¼r Inter- nationale Politik (2002), 15, and Eva-Marie Russek for her help. The contribution reflects the state of affairs as of 1 May 2004 (date of accession of the Czech Republic to the EU). 2 European Commission, The Czechoslovak Presidential Decrees in the Light of the Acquis Communautaire, Summary Findings of the Commission Services, 14 October 2002. 3 Legal Opinion on the Benes-Decrees and the Accession of the Czech Republic to the Euro- pean Union (DGIV working paper (PE 323.374), 2 October 2002): Common Conclusions and Legal Opinions by Prof. U. Bernitz, Prof. J. A. Frowein and Lord Kingsland Q.C., see http://www.europarl.eu.int/studies/benesdecrees/pdf/opinions_en.pdf. Benes-Decrees in its resolution on the progress of the accession negotiations dated 20 November 2002.1 This contribution shall give a brief overview of the problematic questions of the Benes-Decrees and the Czech restitution laws, including the practice of their application by the Czech courts and administrative authorities. In doing so, spotlight shall be put on connected legal questions from a human rights and community law perspective. The main focus will primarily be on aspects that have so far not or only superficially been dealt with in the relevant legal opinions. For a better understanding of the legal and historical context, a preliminary chapter will address general international law aspects of the expulsion and expropriation of the Sudeten German people.

II. The General International Legal Framework

A. The Munich Agreement and the 1938 Czech-German Treaty on Questions of Nationality and Options The so-called Munich Agreement of 29 September 1938, in which Great Britain, France and Italy agreed on the cession of the Sudeten territory to the German Reich5, was the first step towards the break-up of Czechoslovakia. On 15 March 1939, the remaining part of Czechoslovakia was occupied by the German Army and the "Protectorate of Bohemia and Moravia" ("Protektorat Bohmen und Mahren") was set up.6 In order to regulate matters of nationality, the German-Czech "Treaty on questions of nationality and options"7 was signed on 20 November 1938. Based on this treaty, Czechoslovakian nationals of German ethnicity who had their domicile or right of

4 European Parliament resolution on the progress made by each of the candidate countries towards accession (P5_TA(2002)0536), 20 November 2002, para. 58. 5 See RGB1. 1938 II, 853. On 30 September 1938 Czechoslovakia, which was no contracting party, declared under protest to accept the Munich Agreement. This acceptance was uncon- stitutional from a Czechoslovak constitutional law perspective, because the constitutional requirements for the modifications of borders were not met. 6 See Erlass des Fuhrers und Reichskanzlers uber das Protektorat Bohmen und Mahren (Order of the Fuhrer and Chancellor of the German Reich regarding the Protectorate of Bohemia and Moravia) of 16 March 1939, RGBI. 1939 I, 485. The area around Teschen (1000 sqkm, population: 230,000), inhabited by a Polish speaking minority, had already been annexed by Poland on 2 October 1938. See J.- B. Duroselle, Histoire diplomatigue de 1919 a nos jours 230 (1993). 7 Vertrag iiber Staatsangehorigkeits- und Optionsfragen, RGB1 1938 II, 895, see also Art. II of the "Law on the reunification of the Sudeten German territories with the German Reich" ("Gesetz uber die Wiedervereinigung der sudetendeutschen Gebiete mit dem Deutschen Reich") of 21 November 1938, RGB1. 1938 I, 1641.7.