Discrimination on Ground of Nationality

Nikolaus Fürst Blücher von Wahlstatt v Czech Republic, UN Doc CCPR/C/99/D/1491/2006 (19 August 2010)

The Human Rights Committee has found that Czech land laws requiring citizenship as a necessary condition for restitution of property previously confiscated by authorities constitutes a violation of the right to equality before the law.


Nikolaus Fürst Blücher von Wahlstatt (the author) submitted a communication to the Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights, alleging that the application of certain Czech land laws amounted to a violation of a number of rights under the ICCPR, including the rights to equality before the law, equal protection of the law and a fair trial.

The author claimed to be the lawful heir of certain agricultural properties situated in the Czech Republic.  The properties had belonged to the Von Wahlstatt family since 1832 but were nationalized by the state some time between 1948 and 1949.  The author's cousin, Alexander Blücher von Wahlstatt (the testator), had owned the properties at the time they were nationalised.  After his death in 1974, the testator bequeathed all of his properties in Czechoslovakia (as it then was) to the author.

In 1991, the Government of the Czech Republic passed Land Law No. 229/1991 to address the land confiscations that had occurred between 1948 and 1989.  The land law made compensation available, but only to citizens of the Czech and Slovak Federal Republic who permanently reside in the territory and whose land and buildings had passed to the State between 1948 and 1989.  Under the land law compensation would also be available to persons who had inherited confiscated properties, provided also that they are citizens of the Czech and Slovak Federal Republic and permanently reside in the territory.

The author had instituted a large number of proceedings over several years, including administrative restitution proceedings in the district land offices, complaints to the European Court of Human Rights and applications to the Czech Constitutional Court.  The Constitutional Court rejected the author's application on the basis that the testator, as the bearer of the inherited rights in question at the time of the land confiscation, was not proven to have held Czech citizenship.

In his communication to the Committee, the author alleged that any requirement to prove the citizenship of the testator in order to access compensation for the confiscated properties was discriminatory and violated his right to equality before the law and equal protection of the law in art 26 of the ICCPR.  The author also alleged that the right to a fair trial under art 14 had been violated in a number of previous proceedings.


The Committee considered that the citizenship requirement in the land law violated art 26 of the ICCPR, whether it was inherent in the law or whether it resulted from an application of the law by the courts.  The Committee reiterated its view in previous decisions that not all differentiations in treatment can be deemed to be discriminatory under art 26.  At 10.2, the Committee observed that ‘a differentiation which is compatible with the provisions of the ICCPR and is based on objective and reasonable grounds does not amount to prohibited discrimination within the meaning of Article 26’.

The Committee pointed to previous decisions where it had found that a legal requirement for citizenship as a necessary condition for restitution of property previously confiscated by authorities makes an arbitrary and discriminatory distinction between individuals who are equally victims of prior State confiscations, and constitutes a violation of art 26.  The Committee considered that this reasoning was all the more pertinent in the present case, where the author himself does satisfy the citizenship criterion but is denied restitution on the basis of his inability to prove the same criterion in respect of the testator.

In light of this finding, the Committee did not go on to consider the author's other claims regarding the right to a fair trial under Article 14.

The Committee observed that, by becoming a party to the Optional Protocol, the State had recognised the competence of the Committee to determine whether there has been a violation of the ICCPR, and that, pursuant to Article 2, the Committee had undertaken to provide an effective and enforceable remedy in the event that a violation of one of the rights of its citizens had occurred.

In this case, an effective remedy included appropriate compensation if the properties could not be returned.  The Committee also said that the State should review its legislation to ensure that all persons enjoy both equality before the law and equal protection of the law.

Relevance to the Victorian Charter

In Victoria, the right to equality before the law and equal protection before the law in s 8(3) of the Charter is in substantially the same terms as art 26 of the ICCPR.  Accordingly, were a Victorian court to consider the compatibility with the Charter of a Victorian law having the effect of the land law, it is likely that a breach of s 8(3) would be established.  However, the prospects for an effective remedy under the Charter are more limited than the remedies available under the ICCPR.  Under s 36 of the Charter, the Supreme Court may make a declaration that a statutory provision cannot be interpreted consistently with a human right under the Charter, but such a declaration does not affect the validity or operation of the statute.

The decision is at www2.ohchr.org/tbru/ccpr/CCPR-C-99-D-1491-2006.pdf.

Rosannah Healy is a lawyer and Pro Bono Coordinator with Allens Arthur Robinson