Commission on Security and Cooperation in Europe

Testimony :: Olga Jonas
Secretary - Free Czechoslovakia Fund

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Thank you very much for inviting me to speak to you today about the problems US citizens have in receiving equal treatment in the Czech Republic. This is not just a problem for the US citizens concerned – most of them aging widows – but also for residents of the Czech Republic and for establishment of the rule of law in the Czech Republic.

Let me start by quoting Secretary of State Colin Powell – this is what he said yesterday: “The hidden architecture of sustainable development is the law. The law. The law. The rule of law that permits wonderful things to happen. The rule of law that permits people to be free and to pursue their God-given destiny, and to reach and to search and to try harder for their country, for their family. The rule of law that attracts investment. The rule of law that makes investment safe. The rule of law that will make sure there is no corruption, that will make sure there is justice in a nation that is trying to develop.” I believe that this is absolutely key, and that is why since 1991 I have been engaged on the issue of restitution to the victims of the Nazi and Communist regimes.

Today I want to speak about three topics. First, a brief overview of the status – not so much of the relevant laws (because these have not changed) but of the Czech government’s policy, how it’s being implemented and how it shows that there is not rule of law in the Czech Republic. Second, I want to describe two specific cases that illustrate my general points. And, finally, I will have some suggestions about what the US government could do, going forward, to accelerate justice. As Stuart Eizenstat told this Commission six years ago, “Justice delayed is justice denied.” Today many people on both sides of the Atlantic are still waiting.
First, the overall status. Since 1990 the Czech authorities have sought to establish a democratic state based on the rule of law as well as a market economy. Property has been at the center of these changes. But only half-hearted attempts were made to allow some of the victims of Nazi and Communist era confiscations to apply for return of some of their properties. Czech legislation governing private property is fraught with restrictions and limitations whose effect has been to unreasonably reduce the amount of property being returned. Nazi and Communist era confiscations are often legitimized by the new government, in which former Communists still occupy key positions, both in the executive and in the judicial branches.

Over time, it has become clear that the Czech government’s policy on return of confiscated properties has one – and only one – purpose: to directly benefit Communist and former Communist functionaries who have acquired these properties, or hope to acquire them in privatization. All other reasons that Czech officials have offered to Western observers can be shown to be false. For instance, ten years ago, Vaclav Klaus and other Communist-trained economists claimed that returning properties would slow down privatization. This was a false claim to start with – in privatization the authorities had to invent mechanisms to identify the new owners. These mechanisms turned out to be protracted and highly corrupt. The Czech economy still has not recovered from the asset stripping and other “wild East” practices.
With restitution, this step could have been largely skipped – clearly there is an owner, and there is the advantage that this owner has a legitimate claim. This is so because of the effect of Act 119/1990 which annulled the illegitimate Communist verdicts ex tunc – as of the date they were pronounced. It is important to note that by annulment ex tunc the victims never ceased to be the owners, not even for a day. They were illegally denied use and enjoyment of their property – and for this they should receive compensation, in addition to the unconditional restoration of registration of their property in the property books. The Czech Constitutional Court issued several rulings to this effect – that the rehabilitated persons never stopped being the legitimate owners (though the de facto “owner” was someone else- first the state and then typically its high nomenclatura servants). But the lower courts, at the behest of the government, systematically prevent the implementation of these rulings, refusing to restore possession to the rightful owners. This is one more example of the sad fact that the Czech Republic is not yet a state under the rule of law.

The most serious are the clauses disallowing return of property to all persons who are not now considered Czech citizens, to legal persons, and to those victims whose Nazi-confiscated assets were to be returned by the 1945 restitution laws but the return was not actually carried out in time before the Communist takeover in 1948. The victims live both in the Czech Republic and abroad. Their unreturned properties are being steered into the hands of well-connected former Communists and state security agents who are thereby paradoxically rewarded for their support of Communism under the previous regime.
The policy of the Czech government is to deny US citizens the right to apply for return of their confiscated property. This was deemed to violate the non-discrimination requirement of article 26 of the International Covenant on Civil and Political Rights in July 1995 and again in July 1996. These rulings are being ignored by the Czech government, although they have the force of constitutional law in the Czech Republic. The Czech government also disregards repeated requests by the US government and by the US Helsinki Commission to stop discriminating against US citizens. So, to this day, the Czech Republic discriminates in the area of fundamental rights and freedoms; and the right of everyone to own property is abused. Now the European Court will consider the case of several US citizens in this regard. We hope that the Czech government will pay attention. The restoration of the rule of law is not important only for the victims. It is also clear that a market economy simply cannot flourish on the basis of property rights that are illegitimate - and uncertain. Property rights remain uncertain because, fortunately, many people still expect that eventually justice will prevail, even against the wishes of the present Czech government. Just last week the Forum of European Businessmen appealed to the Czech government to improve the investment climate by reducing corruption and improving functioning of the courts. Given the record of the Czech government in taking on board such advice, they may yet have to wait.

Now let me tell you about one case, one among certainly hundreds, if not thousands. Two brothers, Jan and Jaroslav, inherited their family home in 1946, after their father died. This is a nice villa, corresponding to the family’s upper-middle class status, with three apartments and a garden, in a good location near the center of Prague. In 1953, the government had Action “B” Against the Bourgeoisie, to implement its policy of “class cleansing.” In a matter of hours, Jan and Jaroslav and their mother were evicted, their belongings were put on a truck and shipped to a remote village, to a house without indoor plumbing. Their mother was not allowed to return to Prague till 1960. The house was taken over by the government housing enterprise, rented for a pittance – about $50 per month, and allowed to deteriorate over the years. When the restitution law (Act 87/1991) was passed in 1991, Jaroslav applied for return of the house, both on his behalf and on behalf of his brother Jan, who had escaped to the USA and became a US citizen in 1974. The court did return Jaroslav’s half but it did not return Jan’s half, giving as reason that Jan is a US citizen and so is not eligible. So Jaroslav immediately applied for the return of Jan’s half to himself (as the only family member deemed to be eligible) – but the court refused again, giving as reason that Jan was still alive. This was back in 1992.

So Jan then pursued the case in Czech courts and even appealed to the European Commission of Human Rights. That was in 1995. I want to quote from the “Observations of the Government of the Czech Republic” on Application No. 23063/93 submitted to the European Commission of Human Rights and signed on September 27, 1995, by the Director for Human Rights from the Czech Foreign Ministry, Mr. Rudolf Hejc: “Different treatment of the applicant and his brother may be justified by their different legal status, based on different citizenship.” This is the reason for the discrimination. Jan re-acquired Czech citizenship in 1999, when this became possible. But this did not help because the deadlines had long since passed. So to this day, many legal petitions later, the government still refuses to surrender Jan’s half of the house; it is still deteriorating, and without doubt there are a number of local operators who are waiting to buy Jan’s half from the government, as soon as Jan is dead. This is an especially unattractive aspect of the Czech government’s approach – the barely concealed wish for the victims to die. Well, Jan – who was my father – did die four months ago. My mother inherited everything. She wants to pursue the case but in the Czech Republic (where she inherited nothing but this claim), my father’s will has to go through probate. This will take some time - certainly months, maybe years. Another case, very similar, was that of George Hartman. George – many of whose relatives perished in the Holocaust – came to the US after the Communist putsch in 1948. He tirelessly lectured about the misdeeds of the Communists. After 1990, the house that he owned with his brother was also only “half-returned”. His brother, who lived in France since 1948, and whom the Czechs recognized as a citizen, got his half. George never got his own half only because the Czech government declared him ineligible on account of his US citizenship – and George also died this spring. As for the 1928 Treaty on citizenship, I want to note that over the years the Czech governments abused the Treaty, with the sole objective of depriving US citizens of their property rights.

So what can be done now? First of all, we hope that this Commission will continue and, indeed, deepen, its activities on property rights in post-Communist countries. Only Western pressure will help. The protests of the victims have not had any effect. For instance, thirty organizations submitted a Proclamation to the Czech President and other officials several years ago; these officials took no notice. We would like this Proclamation be made part of the record of this hearing. Now that the Czech Republic is in NATO, Czech officials feel that there is not so much US government interest in how the country is run. It is important for the US government to impress on the Czech government that it has obligations – to conduct itself in line with international agreements on human rights, in a nondiscriminatory way. The US government should object when high government officials claim that everything that US citizens should have received has already been returned to their Czech relatives. The two examples I just described show that this is just not true. Yet this claim is repeatedly made in the Czech press by Mr. Rychetsky, the Deputy Prime Minister, a former Communist, and the author of the discriminatory and defective restitution laws. Ending of the arbitrary discrimination should be at the top of the Administration’s agenda for the planned visit to Washington of the Czech President Vaclav Havel on September 18, 2002.

The US authorities should demand that the Czech government respond to the two binding decisions of the UN Committee of Human Rights. The United States is a member of this committee. There should be a deadline – the one for responding to the UN Committee under its rules has long since passed. Nobody seems to care, so the Czech government is content. The US government should impress upon the Czech authorities that those being denied property are not simple beggars who can be put through countless bureaucratic hoops in order to prove that the property that is theirs should be returned – instead it is the obligation of the Czech governments to speed up this process, to make it easy for the claimants, to return property as soon as possible, and to pay compensation: first, for the delays that the present government has caused and second, for the period when the predecessor regime denied the victims the use and enjoyment of their assets. The Czech state did not just take over the assets of the predecessor Communist state – it also took over all its obligations. It should matter to US-Czech relations whether the Czech government treats the victims of the Nazi and Communist regimes with due respect and civility.

Second, we would like to encourage the Helsinki Commission to hold hearings with the responsible Czech officials, in the Czech Republic, with the Czech press and public having access. As you may know, Czech officials, notably Vaclav Klaus, have openly dismissed the appeals from the Helsinki Commission. It would be harder for them to do so if the hearings were held in the Czech Republic. It’s a lovely country to visit, the people are really kind – that is, people other than the officials, among whom are some former dissidents who seem to have forgotten about human rights now that they are in power. I hope that the members of this Commission will seriously consider this proposal.

Finally, it would help to begin to hold accountable the specific officials who have been active in denying the basic rights of US citizens for the last decade. They should not be eligible to receive visas to visit the US. They are engaging in arbitrary and discriminatory persecution of US citizens and their families. We have compiled a list from the voluminous correspondence between the victims and Czech officials. Maybe this proposal could be taken into consideration in the ongoing review of US visa policy.

In closing, I would like to acknowledge on behalf of all the Czech exiles the very helpful work that Erika Schlager and Maureen Walsh have been doing on these matters over the last several years. There are many people on both sides of the Atlantic who are very grateful that this Commission exists and continues its work for human rights.
Thank you.