Fighting Fund for Action before the European Court of Human Rights

27 November 2001

This message concerns all those who have been refused Restitution by the Czech Republic Authorities on the ground that they did not possess Czech Nationality or Citizenship.

Please pass it on to anyone you know who falls under this heading.

Re: Fighting Fund for Action before the European Court of Human Rights

The time has now come for you to consider whether you would seriously like to participate in a potential joint action before the European Court of Human Rights. Forgive me if this becomes a slightly more lengthy document. I will try to be succinct but I cannot not cut corners.

Let me summarize what I have done so far, where we stand - and what we need to do.

1. We claim that Czech Restitution Laws contravene European Human Rights legislation.

2. The Czech Republic has closed the doors to any Restitution Claims

3. The Czech Republic is attempting to become a full member of the European Union.

With these basic premises I have taken the preliminary steps needed for a campaign to change the iniquitous restitution laws in the Czech Republic on two parallel paths:

1. - Political: I have prepared and presented a Petition to the European Parliament to block the entry of the Czech republic into the European Union until such time as they revoke the discriminating restitution legislation. The petition was accepted by the Vetting procedures of the European Parliament and is to be presented to the Parliament.

2. - Legal: I have been investigating through Solicitors in London the prospects of a complaint to the European Court about the nationality requirement for restitutionary claims under the 1991 Czech legislation. We approached a Barrister who specialises in Human Rights legislation. I will append his preliminary report below.

If we are to move forward on this matter, we will need to achieve a number of items:

1. a "legal action fund" - initially 15,000, because from here forward there will be real expenses. So far I have done all the basic research on my own and entirely without funding This sum is needed to pay for a London solicitor, the barrister and we will also very likely need a solicitor in Prague. If we are successful before the Court, this money will be repaid to us when the Court awards costs.

2. We need to identify one case which has gone through all stages of appeal in the Czech republic - or push one case through all these stages.

3. Once we have the right Czech case - we need to take it before the European Court within a maximum period of 6 months. If, on the other hand, we can show that taking the appeals to the full available extent through the Czech legal system will take an inordinate period of time, them we need to appear before the European Court at an early stage, long before the Czech appeals procedure is exhausted.

As you will see, the Barrister conclusion is that on balance the prospects of a successful complaint to Strasbourg justify at least a more detailed investigation of the issues and consideration of the necessary strategy.

Please let me know as soon as possible whether you are prepared now "to put your hand in your pocket" - and to what level of funding you can participate. I think that this will only be a very small group of people how many of you or your Clients would be prepared to contribute to such a fund. When I have responses from all those to whom this email is circulated I will then let you know how much is required from each of those prepared to contribute. Some of you will not bee too strained by contributing a larger proportion of the money needed compared with others who genuinely do not have the funds, but who have a right to participate because they have been discriminated against. It is intended to share the burden, and share it fairly.

I look forward to hearing from you.

Here now follows the assessment by our Barrister:

Potential Czech property claims: round-up of the position

1
This is a summary of where I feel we are with the issues and practicalities of a possible complaint to the European Court about the nationality requirement for restitutionary claims under the 1991 legislation. This note tries to piece together the views expressed and information contained in the various exchanges of e-mails over the past few months and to come up with some tentative conclusions.

2
My basic view is that there is at least an arguable claim on the merits that the nationality requirement violates Article 14 in conjunction with Article 1 of the First Protocol. However, doubt still surrounds the question whether there are any qualifying victims who satisfy the Article 35 requirements of exhausting domestic remedies and then introducing a complaint within 6 months of the final domestic decision. Despite those doubts, on the basis of all I have seen so far I think it is more likely than not that we can find a tactical way through, possibly involving bringing new claims in the Czech republic so as to ensure that there are at least some affected individuals who have the necessary "victim" status and are in time to bring a Strasbourg complaint.

3
If a complaint succeeds, then while the European Court can only award compensation (if at all) to the individual victims who have brought their complaints in time, the Czech government would have to comply with the ruling by changing the law. However, one cannot at this stage begin to predict whether that change would have some retroactive impact, ie. whether individuals who have already submitted unsuccessful domestic claims would be precluded from submitting fresh claims on the basis of the altered law.

4
My view on balance is that the prospects of success on a Strasbourg complaint, taken together with the prospect of getting some general (as opposed to purely individual) benefit from a victory in the European Court, justify at least the steps necessary to properly investigate the issues and set up the necessary strategy. A fighting fund would be needed to finance those steps, which could be undertaken within an agreed budget. If we succeed in paving the way for an admissible Strasbourg application, then it may well be appropriate to come up with a conditional fee arrangement for the necessary funding.

5
Here are my thoughts on the constituent issues.

Merits

6
The legislation at the centre of our potential clients' objections is Act 172/1991. It originally imposed requirements of both residence and nationality. But the Constitutional Court has ruled the residential requirement unconstitutional (this fact emerges from a quick look at the European Court decisions on the Czech restitution regime).

7
Article 1 of the First Protocol does not recognise a right to acquire property, so a person cannot complain to Strasbourg about the bare fact that he or she has no restitutionary claim. That point is reflected in the first sentence of the last paragraph of the note the Czech lawyer sent to David Lewin on 27 March 2001. But that is not the end of the matter. Because claims under the 1991 legislation fall within the ambit of Article 1 of the First Protocol, a claim can be made that the nationality requirement unjustifiably discriminates between nationals and non-nationals in breach of Article 14.

8
I have not given detailed consideration to the merits of that claim: to do that, one would have to look in detail at Act 192/1991, other related legislation, the constitutional court's ruling on the residence requirement and any other relevant constitutional case-law. But the starting point in a broad assessment of the merits must be the UN Human Rights Committee's 1995 decision in Simunek v. CZ. It is not clear that the Committee was dealing with quite the same piece of legislation we are concerned with (the decision refers to Act 87/1991). But the subject-matter is clearly comparable. The summary I have seen indicates that in the Committee's view, the nationality requirement violated Article 26 (the non-discrimination provision) of the ICCPR. I notice that the Czech Prime Minister's letter of 19.7.01 points to 1990 and 1991 legislation that "made it substantially easier" to regain Czech nationality; but presumably the HRC was aware of that legislation in 1995 and found it no answer to the Article 26 claim.

9
There is nothing in the European Court decisions so far that is decisive either way. If we take the matter further, I will in due course have to plough through this material in more detail. But at the moment, the most I am able to say is that (a) persons who claim only as heirs of the dispossessed are likely to face greater difficulty than surviving dispossessed individuals, and (b) people who can lay claim to restitution of identifiable assets may be in a stronger position than those who have only a right to pecuniary compensation. Both these distinctions appear to tally with some observations made by David Lewin in an e-mail sent in June. He points out that claims in relation to land that was confiscated by alteration of the land register are restitutionary in the true sense, and distinguishes these claims from what he calls "inheritance" claims.

10
Putting all this together, it is clear that there is at least something worth arguing about here. My best assessment at this stage is that so far as the merits are concerned, it is more likely than not that the European Court would regard the complaint as sufficiently arguable to get over the initial admissibility hurdle (ie. the case is not "manifestly ill-founded").

Admissibility requirements

11
To re-cap, the requirements are:

Victim

Each Strasbourg applicant must be a victim, that is a person directly affected by the nationality requirement (Article 34). In practice people who have made claims but had them rejected are in the strongest position. People who have not made claims could still be victims if it is plain the law would preclude them from succeeding, but those people are likely to be affected by problems of non-exhaustion -- see below. One cannot run a class or representative action at Strasbourg on behalf of an anonymous group. But there is nothing to stop each individual who has "victim" status and who satisfies the other admissibility requirements from joining in a single complaint and being jointly represented.

Exhaustion of domestic remedies Each applicant must exhausted domestic remedies before the European Court proceeds to consider the admissibility of the application (Article 35). Only those remedies which are "effective" need be exhausted. There is no need to try a remedy which is in practice not accessible to the applicant or which plainly stands no prospect of success.

6 months time limit

As I have emphasised from the very outset, the application must be submitted to the European Court within 6 months of the final domestic decision (Article 35). There is a close link with the exhaustion requirement: time starts to run with the final decision in proceedings that amount to an effective remedy that the individual has to exhaust. That usually means that time runs from the date of the final judgment of the domestic courts on a challenge to the law or administrative decision in question. But if there is no effective remedy, time starts to run as soon as the individual becomes a victim of a violation of the Convention.

Compatibility ratione temporis There has to be some act attributable to the State on or after 1.1.93 when the Convention came into force for what was Czechoslovakia.

12
So far as these requirements are concerned -- particularly exhaustion and the time limit -- I have found it extremely difficult to piece together a clear and reliable picture, particularly as regards the state of play in Czech domestic law. The key points are:

1.
Is there anyone who has already challenged the nationality requirement in the domestic courts and who is still in time to submit a Strasbourg application? Answer is almost certainly no.

2.
Hence in practice, if we are to get anywhere, we will have to take steps to start time running again for a group of claimants. In the best possible world we would need to find a group of non-nationals who did in fact make claims before the 26 May 2001 deadline and whose claims were rejected by the national authorities recently enough to ensure that they are still in time either to challenge the rejection in domestic law (if there is an effective remedy available to them) or to go straight to Strasbourg (if there is no effective domestic remedy). I recall being told that in fact some claims made after the 26 May deadline are in fact being looked at by the authorities. If that is so, then all is not lost even if we cannot find someone who got in before the deadline.

3.
As to the availability and effectiveness of domestic remedies, as matters have progressed I have raised a number of questions which we have together slowly been able to answer. But the central question remains outstanding: can non-nationals whose restitution claims are now rejected access the Constitutional Court to challenge the constitutionality of the nationality requirement?

4.
The material available to me points in conflicting directions:

1.
Article 10 of the Czech Constitution provides that "Ratified and promulgated international treaties on human rights and fundamental freedoms, whereby the Czech Republic is obligated, shall be directly binding and shall have precedence over the law"._ Article 87 empowers the Constitutional Court to "rule on repeal of laws or their individual provisions which are in violation of a Constitutional Act or an international treaty defined in Article 10"._ Finally Article 88(1) says "(1) A law shall determine who and under what conditions may file a motion to initiate proceedings and other rules of procedure before the Constitutional Court.".

2.
The relevant European Court case-law appears to indicate that an application to the Constitutional Court is in principle a remedy that an applicant must exhaust. That is consistent with the Czech Lawyer's message to David Lewin of 27 March points out that if a claim is rejected "you can appeal to a higher instance and undergo all the procedure to the Constitutional Court. But without success". IN her further message of 12 August 2001 she confirms that "For a `normal' citizen it is not possible to ask the Constitutional Court for cancellation of a provision in an Act passed by Parliament without exhaustion of all the domestic remedies".

3.
So on the face of it, anyone whose claim has been rejected recently will need to take the necessary steps in the lower courts in order to get, eventually, to the Constitutional Court before going to Strasbourg.

4.
I still do not know whether the negative assessment of prospects of success in the Constitutional Court is based on an actual decision of that Court -- either at the same time as it ruled on the residence requirement or subsequently -- ruling the nationality requirement constitutional, All I know (from David Lewin) is that there are no current Constitutional Court proceedings concerning this legislation. This is an extremely important question that should be easy to answer. If the answer is yes, then (unless there is some suggestion from recent case-law that the court might now change its mind) then domestic proceedings will be an ineffective remedy, so the 6 months time limit will run from rejection of the claim for restitution. If the answer is no, then unless there are convincing legal reasons for regarding an eventual application to the Constitutional Court as plainly hopeless, then Strasbourg will probably say that domestic judicial remedies must be exhausted.

5.
I have explained in earlier correspondence the "sting" of mistakenly trying to exhaust domestic remedies that are later found ineffective: out of time and no discretion to extend the 6 month limit. So if there is any real doubt about the effectiveness of a domestic judicial challenge, we should commence Strasbourg proceedings within 6 months of rejection of the claim for restitution. It is possible to ride both horses at once: an application to Strasbourg need initially only be by simple letter, and if necessary the Court can be asked to defer consideration of admissibility while domestic proceedings are undertaken.

6.
I do not think there is necessarily a ratione temporis problem, since any victim would inevitably be complaining about the post-1993 application of the law to him or her, not about the law in the abstract. But some further thought needs to be given to this issue. My provisions view is that I would not be inclined to advise against proceeding to Strasbourg merely because of a risk that this issue will be decided against us.

Taking things forward

13
I hope that I have adequately sketched out the areas that will need to be looked at in order to advise further as to the prospects of getting over the admissibility hurdles. It would be sensible to review the merits also as part of that exercise. It is not terribly easy to estimate the time likely to be involved. The problem lies in assessing the time and expense associated with getting an adequate picture of the position in domestic law or procedure. On past form I cannot see these points being resolved by exchange of written material. At least one video conference and/or meeting with the Czech lawyers is likely to be necessary.

14
Attempting a best guess at this stage, I imagine that my fees for the work involved could probably be accommodated by a budget of say 3,000 to 3,500 plus the cost of any travel/accommodation. I would have thought that an economic figure given the likely value of the claims involved. Provided I get the answers I need about the position in domestic law, I could produce a definitive advice on the prospects of success on admissibility and merits. If the result is a decision to go ahead, the initial investigation would provide enough to enable us to come to a sensible view about the terms of a conditional fee arrangement for running the Strasbourg litigation. The big unknown that I cannot help remains the likely cost of domestic proceedings up to the Constitutional Court should I advise that such proceedings are a necessary precursor to a Strasbourg application. Perhaps initial inquiries should be made now.